May 15, 2025
Legalpedia Citation: (2013) Legalpedia (CA) 08698 In the Court of Appeal HOLDEN AT AKURE Wed Mar 27, 2013 Suit Number: CA/EPT/AK/GOV/03/13 CORAM JOSEPH DIEKOLA OGUNDERE JUSTICE, COURT […]
CORAM
JOSEPH DIEKOLA OGUNDERE JUSTICE, COURT OF APPEAL, (Presided and Dissented)
JOSEPH DIEKOLA OGUNDERE JUSTICE, COURT OF APPEAL, (Presided and Dissented)
JOSEPH DIEKOLA OGUNDERE JUSTICE, COURT OF APPEAL, (Presided and Dissented)
JOSEPH DIEKOLA OGUNDERE JUSTICE, COURT OF APPEAL, (Presided and Dissented)
GEORGE ADESOLA OGUNTADE, JUSTICE SUPREME COURT
JOSEPH DIEKOLA OGUNDERE JUSTICE, COURT OF APPEAL, (Presided and Dissented)
, NIKI TOBI JUSTICE, SUPREME COURT
PARTIES
OLAWALE OJO JAMES
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)2. DR. RAHMAN O. MIMIKO 3. LABOUR PARTY (LP)4. ACCORD PARTY
AREA(S) OF LAW
SUMMARY OF FACTS
Governorship Election was conducted to elect the Governor for Ondo State by the 1st Respondent. The 2nd Respondent was the candidate of the 3rd Respondent, Labour Party at the said election. Twelve other political parties also sponsored candidates for the said office at the election. At the conclusion of the election, the 2nd Respondent was returned as elected and declared as such by the 1st Respondent. The Appellant was not a candidate at the said election and no vote was scored nor recorded for him by the 1st Respondent, because the name of the Appellant was allegedly excluded. The Appellant, purportedly with the 4th Respondent, Accord Party were dissatisfied with the result as declared and the return of the 1st Respondent as the winner. By a Petition they prayed for the following reliefs before the Tribunal, that it may be declared that the Governorship Election held on 20th October 2012, in Ondo State wherein the 2nd Petitioner though validly nominated for the election but unlawfully excluded is invalid and unlawful; an order setting aside and/or nullifying the Ondo State Governorship election held on 20th October 2012, and the return of the 3rd Respondent, Dr, Rahman O. Mimiko as winner of the said election. At the close of pleadings, the Respondents filed applications praying that the Petition be dismissed or struck out for incompetence. The Petitioners filed an application in which they prayed that the various objections of the Respondents be taken along with the substantive petition. The 1st Petitioner, Accord Party filed an application praying that its name be struck out from the petition on the ground that it neither authorized the filing of the petition nor the use of its name as it had resolved not to challenge the return and declaration of the 3rd Respondent by the 1st Respondent. The 2nd Petitioner filed a counter motion to challenge the 1st Petitioner’s motion asking that its name be struck out and a motion praying for judgment at the interlocutory stage on the basis of the yet to be adopted written statement on oath of witnesses and documents thereto. The Respondents variously opposed the application. These applications were consolidated and the Tribunal in all ruled against the Appellant and accordingly dismissed the Petition. Dissatisfied with the decision of the Tribunal, the Appellant filed an appeal before this court,
HELD
Appeal Dismissed
ISSUES
Whether the 1st Petitioner was a party to the petition on whose behalf only the solicitors on record could bring an application. Whether a solicitor who did not institute an action could validly bring an application on behalf of a party already represented by a solicitor when that solicitor has not been debriefed. Whether the lower tribunal could in the circumstances of this case hear and determine the Respondent’s Preliminary Objections and dismiss the petition in limine. Whether the main issue in the petition could be determined on the pleadings, Witnesses’ Statements on Oath, documents attached to the pleadings and the state of the law. Whether on the facts before the lower tribunal the Petitioners were not entitled to judgment.
RATIONES DECIDENDI
PROLIFERATION OF ISSUES – ATTITUDE OF COURTS TO PROLIFERATION OF ISSUES
“It is trite that the Courts distaste the proliferation of issues for determination formulated from grounds of appeal. The rule is that a number of grounds could where appropriate be formulated into one issue flowing from them, but a ground of appeal cannot be split to give rise to several issues. Labiyi V. Anretiola & Ors (1992) 10 SCNJ 1.”
GROUNDS OF APPEAL – PRINCIPLE GUIDING THE FORMULATION OF GROUNDS OF APPEAL
“In resolving ground three of the grounds of objection, Order 6 Rule 2(3), Court of Appeal Rules, 2011 provides that Grounds of Appeal must be concise, distinctly headed, numbered consecutively and not contain argument or narrative. I view that the purport of Order 6 Rule 2(3), Court of Appeal Rules, 2011 is that each ground of appeal shall differ from the other. It does not by any means imply that two grounds of appeal cannot relate to each other. In fact, two grounds of appeal can refer to the same issue but the complaints on them should differ, otherwise the said grounds will be held to be repetitive. See: Ayinla V. Adigun (1996) 1 CA (Pt.11) 131.”
ISSUE FOR DETERMINATION – WHETHER AN ISSUE FOR DETERMINATION CAN CONTAIN MORE THAN THE COMPLAINT IN THE GROUNDS OF APPEAL
“A legal inference can be drawn between a writ of summons and a statement of claim on one hand and the grounds of appeal and issues for determination formulated in a brief of argument on the other hand. In the two, the later supersedes the former. The issues for determination in a brief of argument once distilled are considered to have displaced the grounds of appeal. Accordingly, arguments in the brief must follow the issues for determination and not the grounds. The issues must contain the substance of the grounds of appeal. It might contain less but cannot contain more than what have been complained of in the grounds of appeal. See: Momodu v. Momoh (1991) 1 NWLR (Pt.169) 608.
From the above decision, it is permissible for the issues formulated from the grounds of appeal to contain less substance than those in the grounds of appeal but forbidden for the issues to contain more. Where the issues contain less, there will be excess grounds of appeal, In other words, there will be grounds of appeal not covered by the issues formulated. When that is the case’ as in the instant case, the entire grounds are not rendered incompetent at least for the simple reason that the law allows the substance content of the grounds of appeal in the issues to be less, rather, the grounds of appeal which are not covered by the issues formulated are deemed abandoned.”
GROUND OF APPEAL- CONSEQUENCE OF A MERE ASSERTION THAT A GROUND OF APPEAL IS BASED ON “ERROR IN LAW”
“Lastly on ground four, it is trite that mere assertion that a ground of appeal is based on “error in law” does not make it one if the errors particularized are no more than matters of fact. See: N.N.S.C. Vs. E.S.V (1990) 11 – 12 SC 209. I have examined ground (xx) tagged by the Appellant as based on “error in law”. The Appellant’s complain therein is that the Tribunal was wrong to have held that the parties before the Federal High Court in the case that led to this appeal is same as the parties before the Tribunal. I am of the view that the complaint in ground (xx) is of fact and not law. A finding of fact cannot concretize to an error in law just because the Appellant has so tagged it. See: Ogbechie v Onochie (No.1) (1986) 2 NWLR (Pt.23) 484.”
GROUND OF APPEAL – STATUS OF THE JURISDICTION OF THE COURT OF APPEAL WHEN A GROUND OF APPEAL IS BASED ON MIXED LAW AND FACTS
“When a ground of appeal is based on facts alone, or mixed law and facts it could not be filed in this court without first seeking and obtaining leave of the court. See: Nwadike V. Ibekwe (1987) 4 NWLR (Pt.67) 718. Accordingly, once a ground of appeal is based on facts or mixed law and facts the jurisdiction of this court is ousted unless leave has been sought and obtained to file the ground, see: Ojemen v. Momodu 11 (1993) 1 S.C.N.L.R 188 at 206.”
GROUND OF APPEAL – IMPLICATION OF A FAILURE TO FORMULATE AN ISSUE FROM A GROUND OF APPEAL
“The law is: Where no issue is formulated in respect of a ground of appeal, ground from which no issue has been distilled is deemed abandoned and must be struck out accordingly. See: Dakolo V. Rewane-Dakolo (2011) 16 NWLR (Pt.1272) 22 at 50.”
GROUND OF APPEAL – DUTY ON COURT WITH RESPECT TO INELEGANT GROUND OF APPEAL
“It is settled that the Courts will always make the best they can, out of a bad or inelegant ground in the interest of justice. See: Ekpemupolo & 4 Ors v. Edremoda & Ors (2009) 3-4 SC. 56; Dakolo V. Rergane Dakolo (Supra).”
RIGHT OF APPEAL – CONSTITUTIONAL GUARANTEED RIGHT OF APPEAL
“The Constitution of the Federal Republic of Nigeria (as amended), the law and practice in the administration of justice have vested in the aggrieved a right of appeal to a superior Court against any decision in respect of which he is aggrieved. See: Saraki v. Kotoye (1992) 11/12 SCNJ 26. This right is jealously guarded and preserved by our Courts.”
COUNSEL- GUIDING PRINCIPLES ON HOW A COUNSEL CONDUCTS A CASE
“A counsel is under a legal duty to give the name and citation of authorities he relies on in conducting his case to the court. A counsel cannot rely on the fact that a case is generally known by everyone in failing to fulfill this legal obligation. It is an acceptable practice in the conduct of a case for a counsel to file list of additional authorities. The practice has been stretched further to accommodate a counsel who discovers relevant authorities at the close of addresses or even when a matter has been adjourned for judgment. The rule of practice allows such counsel to forward the same by a letter, making the name and citation of the authorities available to the Court. However, owing to our adversary system of adjudication and to ensure fair hearing, the counsel is duty bound to also make the authorities available to counsel to the opposing parties, See: African Reinsurance Corporation V. IDP Construction Limited (2003) 2 SCBJ 28.”
ADDITIONAL AUTHORITIES – CONDITION UPON WHICH A COURT WILL USE ADDITIONAL AUTHORITIES FILED BY PARTIES
“While a court is enjoined to make use of relevant authorities sent to it by counsel even when a matter has been adjourned for ruling or judgment, the court can only make use of such additional authorities when it is evidenced that the additional authorities sent to the court had also been sent to the opposing counsel for his reaction.”
ELECTION PETITION- PROCEDURES FOR OBJECTING TO A PETITION
“In PDP v. INEC (supra), Muntaka Coomassie, JSC at pages 558 – 559 Paragraphs C – B put the point beyond any per adventure thus:
“The main contention of the appellant in this appeal my lords is that the lower court was wrong to affirm the decision of the Tribunal that struck out various paragraphs of the petition in it final judgment. It was the contention that the trial Tribunal wrongly relied on paragraph 12(5) of the 1st Schedule and that by the provisions of paragraph 47(1) all motions shall be moved at pre hearing session except in extreme circumstances with the leave of Tribunal. Paragraph 12(5) of the 1st Schedule to the Act, 2010 provides thus:
“……………………………………………”
While paragraph 47(1) of the 1st Schedule to the Electoral Act, 2010 (as amended) provides thus:
“……………………………………………”
With tremendous respect, these paragraphs of the 1st Schedule apply to the different situations in the proceedings, i.e:
i. Where a party approaches the Tribunal with objection by way of motion, such motion shall be moved and determined during pre-hearing session except in extreme circumstances with the leave of the Tribunal, that is the position under the provisions of paragraph 47(1) of the 1st schedule; and
ii. Where the objection is embedded or stated in the reply, such objection shall be heard along with substantive case.
In the instant case or appeal, the respondent adopted the latter procedure by stating the objection in their reply and argued same. In their final written address and the appellant also replied in its own written address.
In my view the provisions of the two paragraphs are clear and unambiguous and are not subject to any interpretation and I only wish to state that where the law provides for two methods or procedures for doing a thing, a party can choose any of the methods so provided.”
I shall also reproduce the paragraphs of the 1st Schedule relied on by the Tribunal. They are:
Paragraph 18(7)(d)
(18)(7) At the pre-hearing session, the tribunal or court shall consider and take appropriate action in respect of the following as may be necessary or desirable –
(d) Hearing and determination of objections on point of law.
Paragraph 53(2) and (5)
(53)(2) An application to set aside an election petition or a proceeding resulting there from for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken thereto shall show clearly the legal grounds on which the application is based.
(5) An objection challenging the regularity or competence of an election petition shall be heard and determined after the close of pleadings.
By the decision of the Supreme Court in PDP V. INEC (Supra); the provisions of paragraphs 12(5) and 47(1) of the 1st Schedule to the Electoral Act are two methods or procedures for objecting to a petition. The Respondents are entitled to elect any of the two. The election here entails the exercise of choice by the Respondents. The Respondents by the doctrine of election are compelled to choose between the two options open to them by virtue of paragraphs 12(5) and 47(1) of the 1st Schedule to the Electoral Act; and precluded from the use of the other paragraph. The obligation imposed on the Respondents by the doctrine of election entitles them to enjoy the benefit of paragraph 12(5) or 47(1) and not the two in a given Petition.
The dispute in the instant appeal is that the Respondents who had elected to file their objection along with their reply under paragraph 12(5) turned around to also choose the procedure under paragraph 47(1). This runs counter to the spirit of election for which the apex court in PDP V. INEC (supra) held that paragraphs 12(5) and 47(1) represent, in raising objections against election Petitions.
CONSOLIDATION OF CASES – WHETHER A TRIBUNAL IS OBLIGATED TO DETERMINE AN INCOMPETENT PETITION ON GROUND THAT IT HAS BEEN CONSOLIDATED WITH OTHER PETITIONS
“The principle of consolidation is to hear cases with similar issues together with a view to ensure expeditious hearing of the cases and to save cost. See: Diab Nasir V. Complete Home Enterprises (Nig) Ltd (1977) 5 SC 1. In my opinion, I do not agree with the Appellant that the principle postulates that incompetent petition or matter must be heard at all cost simply because it has been consolidated with other matters or petitions. For the fact that consolidated petitions are not like siamese twins, the Tribunal cannot embark on an exercise in futility in the name of consolidation when the matter is incompetent. The cases of Diab Nasir v. Complete Home Enterprises (Nig.) Ltd. (1977) 5 SC and Ezike v. Egbuaba (2008) 11 NWLR (Pt.1099) 627, are not authorities to support the Appellant’s position.”
ELECTION PETITION – DUTY OF A PETITIONER IN AN ELECTION PETITION
“In the case of Justice Party v. INEC (2006) ALL FWLR (PT.339) 907 at 944 C- D; this Court following the decision of Buhari v. Obasanjo (2005) ALL FWLR (PT.273) 1 OR (2005) 2 NWLR (PT.910) 241 observed as follows:
….a petition is a declaration of the appellant’s right in which the reliefs sought are declaratory. The appellant is under a duty to adduce cogent and convincing evidence in support of his assertion. He has to succeed on the strength of his own case and not on the weakness in the case of the respondent.”
DECLARATORY RELIEFS – WHETHER FAILURE TO FILE A DEFENCE ENTITLES A PARTY TO THE DECLARATORY RELIEFS CLAIMED
“It is the law that failure to file defence will not entitle a party claiming declaratory reliefs to judgment. Being an equitable relief, it is granted at the discretion of the Court and only when the Court is satisfied that the party is entitled to the declaration sought. See the case of: Salau v. Parakoyi (2001) 1 NWLR (PT.695) 446 or (2000) LPELR CA/L/87/97.”
WITNESS STATEMENT ON OATH – CONDITION UPON WHICH A WITNESS STATEMENT ON OATH WILL CONSTITUTE AS EVIDENCE
“It is trite that the witness statement even though on oath will still not constitute evidence until the witness enters the witness box and led by his lawyer to adopt his statement, tender undisputed documents and those referred to in his depositions and subsequently cross examined.”
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria 1999 (as amended)
Court of Appeal Act, 2004
Court of Appeal Rules, 2011 (now 2016)
Federal High Court (Civil Procedure) Rules, 2009
Rules of Professional Conduct for Legal Practitioners 2007