COMRADE ADAMS ALIYU OSHIOMOLE VS CHARLES EHIGIE AIRHIAVBERE MAJ. GEN (RTD)

CORAM

PARTIES

COMRADE ADAMS ALIYU OSHIOMOLE APPELLANTS

CHARLES  EHIGIE AIRHIAVBERE MAJ. GEN (RTD)

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The Appellant before this court (who was the Respondent at the Tribunal)was the candidate for the Action Congress of Nigeria, in the Gubernatorial Election to determine the Governor of Edo State while the 1st Respondent was the candidate for the Peoples Democratic Party. The 3rd Respondent (INEC) declared the Appellant as winner of the Election. The Respondent (Petitioner at the Tribunal) challenged the election at the Election Tribunal and the Appellant also raised preliminary objections claiming the tribunal lacks jurisdiction amongst other things. The Tribunal struck out some paragraphs in the Respondent’s petition Dissatisfied, the Respondent appealed against the decision of the Tribunal at the Court of Appeal where the court ordered that the Respondent’s paragraphs that were struck out be restored. Hence, the Appellant appealed to the Apex Court.

HELD

Appeal allowed.

ISSUES

1. Whether the Court of Appeal was right to restore paragraphs of the petition that were struck out by the Trial Tribunal and whether the alleged non qualification of the appellant can be considered in the light of no Ground on that issue?

2. Whether or not the lower court was right in restoring the paragraphs of the petition struck out by the trial tribuneWhether the trial Election Petition Tribunal has jurisdiction to adjudicate on purported issue of disqualification or non qualification of the appellant?

RATIONES DECIDENDI

GROUNDS FOR PETITION- THE COURT IS NOT TO FORMULATE GROUNDS FOR PETITION FOR PARTIES WHERE A PETITIONER ALREADY RELIES ON A GROUND.

“It must be elementary that where a petitioner relies on a Ground to question the petition, it would amount to substantial injustice to the adverse party for the court to go looking for other grounds to question the petition. At all times he is to ensure that parties are on a level playing field.” PER RHODES-VIVOUR JSC

PLEADINGS-PARTIES ARE BOUND BY THEIR PLEADINGS

“The well laid down position of the law is that parties are bound by their pleadings. That is to say if pleadings are to be of any use parties must be held bound by them, See Adekoya & 6 Ors. V. Adesina & 4 ORS 2010 12SC (PT. 11) P. 1; Ojiogu V. Ojiogu & Anor 2010 3-5 SC (PT. 11) P. 1; Akpan V. Bob & 4 ORS 2010 4-7 SC (PT.1 1) P.57; Balial Nig Ltd V. Navcon Nig Ltd 2010 5-7 SC (PT. 11) P. 1″ PER RHODES-VIVOUR JSC

ISSUES FOR DETERMINATION – ISSUE FOR DETERMINATION MUST ARISE FROM GROUNDS OF APPEAL.

“An issue for determination must arise from a ground. See Kalu V. Odili (1992) 6 SCNJ 76; Chukwuma Okwudili Uga V. Amanchukwu Obiekwe & Anor (1989) 1 NWLR (Part 99) 566 at 580; Standard Consolidated Dredging & Construction Co. V. Katoncrest Nig. Ltd (1986) 5 NWLR (ParT 44) 791; Okoye V. NCF Co. Ltd (1991) 6 NWLR (Part 199) 501″ PER ALAGOA, JSC

NON QUALIFICATION OF ELECTION CANDIDATE – DUTY ON A PARTY RELYING ON NON QUALIFICATION OF OPPONENT TO NULLIFY ELECTION

“A petitioner who relies on the non qualification of his opponent to nullify the election must make the issue of non qualification a Ground and support the Ground by specific pleadings and particulars. See Judgment of this Court in PDP V. Saror & Ors SC.381/2011 and Suswan V. Ors SC, 381 /2011 and SC383/2011 where the qualification of Suswan was made a ground, In the absence or a Ground on non qualification the court would have no jurisdiction to consider any averment that has to do with the non qualification of the appellant.” PERRHODES-VIVOUR JSC

JURISDICTION OF AN ELECTION TRIBUNAL- IT IS THE PETITION THAT MUST ONLY BE CONSIDERED IN PINPOINTING THE JURISDICTION OF THE TRIBUNAL

“In ordinary civil cases, it hardly needs any gainsaying that cause of action must be grounded on the writ of summons and statement of claim; not statement of defence, talk less of Reply to same. By parity of reasoning, in an Election Petition which is sui generis, it is the petition that must only be considered in pinpointing the jurisdiction of the Tribunal. No other process is of moment. Parties are bound to strictly comply with the dictates of the enabling statutes in drafting their pleadings and presentation of the petition as inadvertence or omissions can be costly as same will not be tolerated in election proceedings. See: Obi v. Mbakwe (1984) 1 SCNL 192; Buhari v. INEC (2008) 4 NWLR (Pt. 1078) 546.” PER FABIYI, JSC

GROUNDS FOR PETITION- WHERE GROUNDS OF PETITION ARE EXPRESSLY STATED, THE JUDGE IS TO ADOPT SAME

“I can understand a judge undertaking a global reading of the petition to find a Ground or Grounds that question the election, but I cannot understand a judge adopting the same procedure in a case, such as this where the petitioner expressly states the Ground on which he is questioning the election. It would amount to making a case for the petitioner to go on a voyage in search of Grounds to question the petition when the petitioner has stated the Ground he relies on.” PER RHODES-VIVOUR JSC

PLEADINGS – IMPORTANCE OF PLEADINGS

“If there is no GROUND in a petition the court should examine the petition/pleadings to see if there are grounds for questioning the election. The long laid down position of the law is that a party should be consistent in stating his case and consistent in proving it, See Ajide v. Kelani 1965 3 NWLR pt.12 pt. 251. That is the importance of pleading. A party must confine himself to his pleadings, Pleaded facts must have nexus with the Ground/s.” PER RHODES-VIVOUR JSC

NON QUALIFICATION OF ELECTION CANDIDATE – NON QUALIFICATION MUST BE EXPRESSLY STATED IF IT IS TO BE RELIED ON AS GROUND FOR NULLIFYING AN ELECTION

“For issue of qualification to be invoked by a petitioner, it must be specifically made a ground of the petition and fully supported by attending particulars. The absence of a ground relating to qualification must ordinarily deprive the Tribunal jurisdiction to consider averments that touch on same. That is the position of this court in PDP V. Saror & Ors. SC. 381/2011 and Suswam V. Saror & Ors. SC. 383/2011″ PER FABIYI JSC

CASES CITED

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STATUTES REFERRED TO

Electoral Act

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