CORAM

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THERESA N. ORJI-ABADUA JCA

MOHAMMED BABA IDRIS JCA

HANNATU LAJA-BALOGUN JCA

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PARTIES

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OLUKOYA DAVID DOHERTY

APPELLANTS 

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HON. RAUF OLAWALE

AGE-SULAIMON

2. ALL PROGRESSIVES CONGRESS (APC)

3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

4. LABOUR PARTY

5. TUNDE FASHINA

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, ELECTION, EVIDENCE, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

This is an appeal against the judgment of the National and State Houses of Assembly Election Tribunal, sitting at Ikeja, Lagos State delivered on the 22nd day of September, 2023. The 1st and 2nd Respondents as Petitioners before the trial tribunal, aggrieved by the declaration and return of the 4th and 5th Respondents (2nd and 3rd Respondents at trial Tribunal) as the winners of the Amuwo-Odofin II Area Constituency of the Lagos State House of Assembly election, filed a petition on the 7th day of April, 2023 against the Appellant, the 3rd, 4th and 5th Respondents respectively, who were the 4th Respondent, 5th Respondent, 2nd Respondent and the 3rd Respondent respectively before the trial Tribunal

The 3rd Respondent whose election is questioned was, at the time of the election, not qualified to contest the election for Amuwo Odofin II State House of Assembly area of Lagos State and the Petitioners also claimed that the election is invalid by reason of non-compliance with the provisions of the Electoral Act 2022. They finally claimed that the 3rd Respondent was not duly elected by majority of lawful votes cast at the election.

The Respondents at the trial Tribunal claimed that the Appellant was qualified to contest the election by virtue of a Court Judgment that permitted the Appellants party to replace the name of the candidate earlier submitted for the election in question.

At the end of the Trial, the lower Tribunal delivered its judgment in favor of the 1st and 2nd Respondents. Aggrieved by the decision, the Appellant filed the instant appeal.

 

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HELD

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Appeal dismissed

 

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ISSUES

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1. Whether Grounds 1, 2, 3 and 5 in the notice of appeal dated 6th October 2023 and issue one (1) formulated there from are competent in law?

2. Considering the facts placed before this Honourable Court and the position of the law on election matters, whether this Honourable Court will not strike out Grounds 1, 2 and 5 of the Notice of Appeal, as well as issue 1 of the Appellant’s Brief of Argument?

3. Whether the Tribunal was right in assuming jurisdiction over this petition?

4. Whether failure of the Tribunal to resolve and/or pronounce on all the issues presented by parties in this election does not constitute breach of the Appellant’s right to fair hearing?

5. Whether the Tribunal was right to have rejected and struck out Exhibits 4R1, 4R2 and 4R3 on the ground that they were not specifically pleaded by the Appellant?

6. Whether the Tribunal was right when it held that the (i.e. Exhibits 18P and 19P) did not deal with the issue of substitution/swapping?

7. Whether the Tribunal was right when it held that the Appellant did not participate in the election?

8. Whether the Tribunal properly evaluated all cogent, credible and compelling evidence of the Appellant and the Respondents before granting the reliefs sought by the 1st and 2nd Respondents?

 

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RATIONES DECIDENDI

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GROUNDS OF APPEAL – THE ESSENCE OF GROUNDS OF APPEAL – WHERE A GROUND OF APPEAL IS DEEMED TO BE VALID

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It is trite that the essence of a ground of appeal is to define the complaint against the decision being appealed against. As far as the ground of appeal gives the Respondent the necessary notice of the complaints the Appellant has against the decision on appeal and leaves no room for surprises on the issues to be raised on the appeal, the ground of appeal is valid and competent. See the case of WAYA VS. AKAA (2023) 10 NWLR (PT. 1893) 537. It therefore follows that Grounds of Appeal arises from the decision of the lower court. – Per M. B. Idris, JCA

 

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GROUND OF APPEAL – ELEMENTS OF A COURT PROCESS THAT COULD CONSTITUTE GROUNDS OF APPEAL

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Any finding or decision of a court of competent jurisdiction that is not appealed against by any of the parties thereto remains extant and binding between the parties as well as the court. Such a finding or decision is a ground of appeal before an appellate court with the requisite jurisdiction over such finding or decision, save on issue of jurisdiction, which can be raised even for the first time even at the Supreme Court. See the case of NNPC VS. FUNG TAI ENG. CO. LTD (2023) 15 NWLR (PT. 1906) 117. An omission by a trial court can be a ground of appeal. This ground of appeal may also arise from an omission by the court from which an appeal emanates, in refusing to do what it ought to do.  – Per M. B. Idris, JCA

 

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GROUND OF APPEAL – THE PURPOSE OF A GROUND OF APPEAL

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The purpose of a ground of appeal is to give sufficient notice and information to the Respondent of the precise nature of the Appellant’s complaint against the judgment appealed against. Its purpose is to avail the Court and the Respondents the opportunity of knowing the Appellant’s grouse against the judgment being appealed against. See the case of NGERE VS. OKURUKET XIV (2023) 14 NWLR (PT. 1904) 361. – Per M. B. Idris, JCA

 

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GROUND OF APPEAL – WHERE A GROUND OF APPEAL IS REPETITIVE OR ARGUMENTATIVE

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However, the fact that a ground of appeal is argumentative or repetitive is not sufficient to deny the Appellant his right of appeal. See generally, the cases of DAKOLO VS. REWANE DAKOLO (2011) 16 NWLR (PT. 1272) 22 and APC VS. JEGA (2023) 8 NWLR (PT. 1886) 367. – Per M. B. Idris, JCA

 

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PLEADINGS – CONDUCT OF COURTS IN CONSTRUING PLEADINGS AND STATUTES

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In construing pleadings, as it is with statutes, the averments should be considered as a whole to gather the collective import of the pleaded facts. It is fundamental that a court considers the totality of the pleadings filed by both sides as doing so enables the judge to properly understand the issues joined in the pleadings. Paragraphs in pleadings should not be considered in isolation. The whole of the pleadings should always be considered to determine what the real issue in controversy is. See the case of ASUQUO VS. EYO (2014) 5 NWLR (PT. 1400) 247. – Per M. B. Idris, JCA

 

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LOCUS STANDI – WHERE THE PLAINTIFF’S LOCUS STANDI TO MAINTAIN AN ACTION IS CHALLENGED

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By virtue of Section 285(13) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), an Election Tribunal or court shall not declare any person a winner at an election in which such a person has not fully participated in all stages of the election. Where a plaintiff’s locus standi to maintain an action is challenged, it is the plaintiff’s claim that determines the objection. See the case of ABUBAKAR VS. BUHARI (2023) 12 NWLR (PT. 1897) 61. – Per M. B. Idris, JCA

 

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PLEADINGS – THE IMPORTANCE OF PLEADINGS IN ADJUDICATION

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…it is trite that evidence tendered which is not pleaded goes to no issue.

Pleadings are the foundation upon which cases are fought at the trial court with evidence led in proof of the pleaded facts. Hence, parties are bound by their pleadings and no party is allowed to set up a case outside what has been pleaded upon which issues are joined. Parties are bound by their pleadings and any evidence led by any of the parties which does not support the averments in the pleadings or which is at variance with the averments in the pleadings goes to no issue and must be disregarded by the court. See the case of LUKE VS. R. S. H. & P. D. A. (2023) 3 NWLR (PT. 1871) 221. – Per M. B. Idris, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Electoral Act 2022

3. Evidence Act 2011

4. INEC Guidelines for the conduct of elections 2023

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