➥ CASE SUMMARY OF:
Ogbeni Rauf Adesoji Aregbesola v. Senator Iyiola Omisore & Ors. (2014) – CA
by “PipAr” Branham-Paul C. Chima.
Court of Appeal – CA/AK/EPT/GOV/05/237/2014
➥ JUDGEMENT DELIVERED ON:
Tuesday, the 9th day of December, 2014
➥ AREA(S) OF LAW
Leave to appeal.
➥ PRINCIPLES OF LAW
⦿ TECHNICALITIES IN ELECTION PETITIONS – IT NEVER SOLVES BASIC ISSUES IN CONTROVERSIES
It is now trite law that election petitions are sui generis that is, that they are in class of their own and are governed by different rules. An election petition is by nature a very peculiar proceeding which distinguishes it from an ordinary civil proceeding. See Abubakar v. Yar’adua (2008) 19 NWLR (Pt 1120) 1. In Nwole v. Iwuagwu (2004) 15 NWLR (Pt 895) 61 the Court, held thus: “The courts have often harped on the need to do substantial justice in most cases without dwelling too much on technicalities … in all election matters, the use of technicalities should be avoided, as technicalities merely help to shut the opponent out. It never resolves basic issues in controversy. Once it is agreed that election petitions are in a class of their own, the handling of the matter too must take a form devoid of legal technicalities that tend to leave the litigants more confused. Boldness of a high degree is required of the electoral tribunal, which must never be seen to shy away from obvious grave allegations.” — J.S. Abiriyi, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
James Shehu Abiriyi, J.C.A.
⦿ FOR THE APPELLANT
Kunle Adegoke Esq.
⦿ FOR THE RESPONDENT
A. Fashanu SAN.
➥ CASE FACT/HISTORY
This is an appeal against the ruling of the Governorship Election Petition Tribunal sitting at Osogbo delivered on the 4th November, 2014. The Appellant who is the 1st Respondent in the petition by motion on notice dated 16th October, 2014 challenged the competence of the Tribunal to hear the petition because the petitioner had not indicated in the petition that he had a right to present the petition as required by paragraph 4 (1) and (2) of the Electoral Act 2010 (as amended).
The Appellant also filed another motion on notice on 21st October, 2014 praying for an order of the Tribunal to strike out the petitioners’ Reply to the 1st Respondent’s Reply same having been filed out of time and dismissing the petition, the Petitioners having failed to apply for issuance of Pre-hearing Notice as prescribed by paragraph 18 (1) of the First Schedule to the Electoral Act 2010 (as amended). On 30th October, 2014 in the course of pre-hearing session, learned counsel for the Petitioners referred the Tribunal to the provision of Paragraph 12 (5) of the First Schedule to the Electoral Act 2010 (as amended) and entreated the Tribunal to take the motions/objections of the 1st Respondent/Appellant along with the petition considering the fact that there was time limitation for the hearing of election petitions.
The tribunal in a considered ruling ruled thus: “It is not a contested fact that time is of the essence in the determination of this petition. The Tribunal has less than 4 months to determine this petition. There are over a thousand witnesses and numerous documents listed by the parties. The Respondents have not complained of any injustice or miscarriage that would be occasioned to them if these two motions are taken along with the petition. We have also not seen any prejudice or miscarriage of justice that will be caused to the Respondents. It is in consideration of the above, the interest of justice and the speedy trial of this petition that we hereby order that all the 4 motions now pending in this petition shall be taken along with the petition.”
Dissatisfied with the ruling the Appellant filed a Notice of Appeal against it on 7th November, 2014.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether Appellant can appeal interlocutory decision without leave of election tribunal?
RULING: Yes – IN RESPONDENT’S FAVOUR.
A. THAT APPELLANT CAN APPEAL INTERLOCUTORY DECISION WITHOUT LEAVE.
“The Appellant has a constitutional right to appeal without leave of court on any interlocutory decision of a Governorship Election Tribunal and that put paid to the objection by the Respondents that the Appellant needed to have sought leave of the tribunal or this court on his grounds of appeal on questions of mixed law and facts.”
II. Whether the Lower Tribunal was right when it held that Appellant’s applications dated 16th October, 2014 and 21st October, 2014 will be taken along with the petition?
RULING: Yes – IN RESPONDENT’S FAVOUR.
A. THAT PRELIMINARY OBJECTIONS IN ELECTION PETITION WILL BE TAKEN ALONGSIDE THE SUBSTANTIVE
“If it is a challenge to the tribunal hearing the petition whether the objection is stated in the reply or is brought by motion on notice, the tribunal has jurisdiction to hear it along with the substantive petition. Paragraph 12 (5) of the First Schedule to the Electoral Act is intended to reflect the sui generis nature of election petitions. The mischief it intends to cure is to ensure that objections raised do not derail the determination of the merit of a case by undue and unwarranted delay occasioned by the preliminary objection. See Oke & ors v. Mimiko & ors (2013) 9 SCM 155 and PDP v. INEC (2012) 7 NWLR (Pt 1130) 538. I am of the view that although the Appellant filed two motions on notice apart from the objections incorporated in his reply the Tribunal rightly invoked the provision of paragraph 12 (5) of the First Schedule to the Electoral Act 2010 when it decided to take the preliminary objections along with the substantive petition.”
“Having resolved the issue against the Appellant, this appeal should be dismissed. It is accordingly hereby dismissed by me. 1st and 2nd Respondents are awarded N30,000 costs to be paid by the Appellant.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
paragraph 12 (5) of the First Schedule to the Electoral Act 2010.
➥ REFERENCED (CASE)
⦿ ALL ELECTION PETITIONS LIE AS OF RIGHT TO THE COURT OF APPEAL
In the case of Awuse v. Odili (2003) 18 NWLR (pt. 851) 116 at 119, Ejiwunmi JSC supported the lead judgment of I.L. Kutugi JSC quoted the provision of Section 246 (1) (b) (ii) of the 1999 Constitution as amended and said of the Section as follows: “An appeal to the Court of Appeal shall lie as of right from the decision of the Governorship Election Tribunal on any question as to whether any person has been validly elected to the office of Governor”. “Though the word “any” when used as an adjective is defined in Longman Dictionary of the English Language thus: “One or some indiscriminately, whichever is chosen”. It would appear that the word “any” qualifying “question” was deliberately used by the law makers to indicate that an appeal to the Court of Appeal was not limited only to hearing appeals only to whether any person has been validly elected to the office of Governor —– It follows therefore that the provisions of Section 246 (1) allows appeals to lie to Court of Appeal in respect of interlocutory decision of the Governorship Election Tribunals and the other tribunals named in that section of the Constitution”.
⦿ RIGHT OF APPEAL AGAINST INTERLOCUTORY DECISION IN AN ELECTION TRIBUNAL
In the case of Maduako V Onyejiocha (2009) 5 NWLR (pt. 1134) 259 at 280 the Court of Appeal Per Eko JCA held as follows:- “By way of emphasis, I wish to add that the decision of the Supreme Court in Alhaji Atiku Abubakar & Ors V. Alhaji Umaru Musa Yar’Adua & Ors SC 288/2007 of 25th January, 2008 (reported in (2008) 4 NWLR (pt. 1078) 465 Per Niki Tobi JSC, leave no doubt in me that an aggrieved party has right of appeal against an interlocutory decision of an election tribunal. That right is a constitutional right by dint of Section 246 (1) (b) of the 1999 Constitution, which is in Pari materia with Section 233 (2) (3) of the Constitution under which Atiku V. Yar’Adua case was decided”.
➥ REFERENCED (OTHERS)