CHARLES EHIGIE AIRHIAVBERE, MAJ. GEN. (RTD.) v. COMRADE ADAMS ALIYU OSHIOMHOLE & ORS.
(2012)LCN/5715(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of December, 2012
CA/B/EPT/344/2012
RATIO
ELECTION PETITION: WHETHER A PETITIONER IS ALLOWED TO INTRODUCE NEW ISSUES NOT CONTAINED IN THE PETITION BY WAY OF REPLY
Paragraph 16 (1) and (2) of the 1st Schedule to the Electoral Act 2010 as amended provides as follows:-
“16(1) If a person in his reply to the election petition raises new issues of facts in defence of his case which the petition has not dealt with, the Petitioner shall be entitled to file in the Registry within 5 days from the receipt of the Respondent’s Reply, a Petitioner’s Reply in answer to the new issues of facts, so however that –
- a) The Petitioner shall not at this stage be entitled to bring in new facts, grounds or prayers tending to amend or add to the contents of the petition filed by him; and
- b) The Petitioner’s Reply does not run counter to the Provisions of subparagraph 14 of this schedule.
(2) The time limited by subparagraph 1 of this paragraph shall not be extended.”
Paragraph 14(1) and (2) of the 1st Schedule to the Electoral Act 2010 (as amended) provides inter alia as follows:-
“14 (1) Subject to subparagraph (2) of this paragraph, the provisions of the Civil Procedure Rules relating to amendment of pleadings shall apply in relation to an election petition or a reply to the election petition as if for the words “any proceedings” in those provisions there were substituted with the words “the election petition or reply”.
(2) After the expiration of the time limited by –
- a) Section 134(1) of this Act for presenting the election petition, no amendment shall be made:
- Introducing any of the requirements of subparagraph (1) of paragraph 4 of this Schedule not contained in the original Election Petition filed, or
- Effecting a substantial alteration of the ground for, or the prayer in, the Election Petition, or
iii. Except anything which may be done under the provisions of Subparagraph (3) of this Paragraph, effecting a substantial alteration of or addition to, the statement of facts relied on to support the ground for, or sustain the prayer in the election petition.”
It can be seen from the foregoing provisions that the Federal High Court Rules in respect of amendment and reply are applicable to the Tribunal as well. The Petitioner is not allowed to introduce new issues or new facts that were not originally in the Petition by way of reply. This is because it will take the Defendant/Respondent by surprise as he will no be longer in a position to react to the new issue. There are plethora of authorities on this principle of law. See for example the authorities cited by Learned Counsel for the parties. They include: Adepoju v. Awoduyilemi (1999) 4 LRECN 53, Oje v. Babalola (1999) 4 NWLR (pt. 185) 267 at 278, Deniyi v. Fetuga (1990) 5 NWLR (pt. 150) 385 at 391, Akeredolu & 3 Ors. v. Akinremi & Ors. (1989) 3 NWLR (pt. 109) 164, 172 and Olabanjo v. Ajiboye (1992) 1 NWLR (pt. 218) 473. PER JAMES SHEHU ABIRIYI, J.C.A.
ELECTION PETITION: HOW NEW FACTS INTRODUCED IN AN ELECTION PETITION
The law clearly provides that such new facts shall be introduced only by way of an amendment of the original Petition provided that the application is made within 21 days after the date on which the result of the election was declared… PER JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
CHARLES EHIGIE AIRHIAVBERE, MAJ. GEN. (RTD.) Appellant(s)
AND
1. COMRADE ADAMS ALIYU OSHIOMHOLE
2. ACTION CONGRESS OF NIGERIA (ACN)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. RESIDENT ELECTORAL COMMISSIONER (EDO STATE)
5. THE RETURNING OFFICER, EDO STATE GOVERNORSHIP ELECTION Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A.: (Delivering the Leading Judgment): The Appellant was a candidate at the Gubernatorial Elections held in Edo State on the 14th of July, 2012. He contested on the platform of the Peoples Democratic Party. The 1st Respondent was the Action Congress of Nigeria (2nd Respondent’s) candidate in the said election. The 1st Respondent was declared winner of the said election.
The Appellant filed a petition before the Governorship Election Petition Tribunal sitting in Benin City, challenging the said election and return of the 1st Respondent as the duly elected Governor of Edo State.
Upon being served with the petition, the 1st Respondent filed his reply thereby joining issues between him and the Appellant. In response to the 1st Respondent’s reply, the Appellant filed a Petitioner’s Reply to the 1st Respondent’s Reply which the 1st Respondent considered to be inappropriate. The 1st Respondent raised an objection on the propriety of the Petitioner’s Reply and the accompanying documents filed.
The objection was heard and the trial Tribunal in its ruling upheld the objection and struck out the offending Paragraphs intended to be relied upon and other accompanying documents. Dissatisfied with the ruling of the Tribunal, the Appellant filed this appeal.
The Appeal is brought upon the following grounds reproduced immediately hereunder without their particulars:
“1. The Learned Chairman and Members of the Governorship Election Petition Tribunal sitting at Benin City erred in law when they held that Paragraphs 3, 4, 5, 7, 8, 9, 10, 11, 12, 13 and 14 of the Petitioner’s Reply to the 1st Respondent’s Reply to the petition introduced new facts, the effect of which amends and adds to the petition as originally filed by the Petitioner.
2. The Learned Chairman and Members of the Governorship Election Tribunal sitting at Benin City erred in law when they struck out most part of the Appellant’s Reply to the 1st Respondent’s Reply and the accompanying list of witnesses, Appellant’s list of documents to be relied on and Appellant’s witnesses’ Statements on Oath.”
Consequently, the Appellant seeks an order of this Court setting aside the ruling of the Tribunal except the part stating that Paragraph 6 of the Appellant’s Reply to the 1st Respondent’s Reply is competent and allowed; having been for the purpose of clarity and qualification, and the decision allowing the Appellant’s written witness deposition on oath in the interest of justice.
Learned Counsel for all the parties in their briefs of arguments which they adopted distilled an issue each from the two Grounds of Appeal. All issues are similar but I prefer the lone issue distilled by Learned Counsel for the Appellant which is; whether the Appellant’s Reply to the 1st Respondent’s Reply constitutes an amendment to the Appellant’s Petition.
It is submitted by Learned Senior Counsel for the Appellant that the Appellant’s Reply to the 1st Respondent’s Reply is valid, competent and does not constitute an amendment of the Petition. This Court is referred to Paragraph 16(1) of the First Schedule to the Electoral Act 2010 (as amended) which guided the Appellant while preparing his reply to the 1st Respondent’s Reply.
The contention of the 1st Respondent in Paragraph 12(b), it is argued is completely new. Therefore, an appropriate Reply is not only desirable but compelling. That the 1st Respondent raised a new issue of facts in Paragraph 12(c) of the 1st Respondent’s Reply to the Petition. That Paragraph 3 of the Appellant’s Reply to the 1st Respondent’s Reply responds to the new issue of facts relating to the issue of the 1st Respondent meeting constitutional qualifications. The Appellant is bound to reply on it, it is submitted, on the ground that the constitutional issue is raised for the first time. Reliance is placed on Adepoju v. Awoduyilemi (1999) 4 LRECN 53 at 73 D – F.
It is further submitted that Paragraph 9 of the Appellant’s Reply to the 1st Respondent’s Reply to the petition is valid and competent. Paragraphs 24 and 25 it is submitted, deal with fundamental constitutional issues relating to the ability or inability to contest in an election.
In the light of the foregoing, the Court is urged to hold that all the Paragraphs of the Appellant’s Reply to the 1st Respondent’s Reply to the Petition are valid and competent.
In Appellant’s Reply Brief to the 1st Respondent’s Brief, Learned Senior Counsel for the Appellant submits that the Appellant was not amending his Petition by his reply to the 1st respondent’s Reply. It is submitted that the new facts or issues raised by the 1st Respondent in his reply to the Petition necessitated the Appellant’s Reply that was the subject of attack in the lower Tribunal.
On his own part, Learned Senior Counsel for the 1st Respondent submitted that the Tribunal was right when it struck out the said Paragraphs of the Appellant’s Reply to the 1st Respondent’s Reply. The Tribunal it is submitted properly construed the provisions of Paragraph 14(1) & (2) of the 1st Schedule to the Electoral Act 2010 (as amended). That the Tribunal found as a fact that the Reply was filed outside the 21 days allowed under S.134 of the Electoral Act.
The Appellant, it is submitted has not appealed against the Tribunals holding that the Reply was filed outside the 21 days period allowed by S.134 of the Electoral Act.
It is further submitted that the Paragraphs struck out introduced new issues not covered either by the Appellant’s Petition nor the 1st Respondent’s Reply. We are referred to Oje v. Babalola (1991) 4 NWLR (pt. 185) 267 at 276 D – E and Deniji v. Fetuga (1990) 5 NWLR (pt.150) 385 at 391, Paragraph 16(1) (a) and (b) of the 1st Schedule to the Electoral Act, 2010 and Paragraphs 14(1) and (2) of the 1st Schedule to the Electoral Act.
It is submitted that the Rules of Amendment and Filing of Reply under the Federal High Court Rules are applicable to this Petition. Furthermore, a Petitioner is not allowed to amend his Petition outside the statutory time limit of 21 days for filing an Election Petition under S.134 of the Electoral Act 2010. In addition, the Petitioner is not allowed to introduce new issues, new facts or new evidence that was not originally mentioned in the Petition by way of amendment or reply.
Learned Senior Counsel for the 1st Respondent referred the Court to authorities which over the years have prohibited a Petitioner/Plaintiff from amending his Petition by way of Reply. The cases are: Adepoju v. Yilemi (1999) 5 NWLR (pt.603) 364; Unity Bank Plc v. Bouari (2008) 7 NWLR (pt. 1086) 372 at 406-407; Yusuf v. Obasanjo (2003) 16 NWLR (pt. 847) 554; Jang v. Dariye (2003) 15 NWLR (pt. 843) 436; Okereke v. Yar’Adua (2008) NWLR (pt. 1082) 37 at 65.
Learned Senior Counsel for the 1st Respondent submitted that Paragraphs 7, 8 and 9 of the Petitioner’s Reply are new facts which purport to amend and improve on the Petitioner’s Petition.
It is his submission that Paragraph 9 is raising for the first time the following issues:
a) That the 1st Respondent is not the owner of his Secondary Modern School Certificate;
b) That the 1st Respondent presented an altered testimonial to the 3rd Respondent;
c) That the 1st Respondent does not have a Primary School Leaving Certificate.
It is submitted that all these averments were not contained in the Appellant’s original Petition. It is submitted that there is no provision under the Electoral Act 2010 or the Practice Directions by which the 1st Respondent can join issues with the Petitioner on these new lines of attack. It is submitted that no ground raised the issue of the 1st Respondent’s non-qualification to contest the said election. The Petitioner merely averred in Paragraph 12 (iv) of the original Petition that the 1st Respondent was not qualified to contest the said election and therefore ought not to be returned as the duly elected Governor of the State. The Petitioner did not furnish particulars of the non-qualification anywhere in the petition neither did any of the 35 witnesses depose to same in their written depositions.
It is submitted that the Appellant is not allowed to introduce these new issues.
It is further submitted that the Appellant is prohibited by law from filing fresh witnesses’ depositions as well as the documents attached to the Appellant’s Reply to the 1st respondent’s Reply. We are referred to Orji v. PDP (2009) 14 NWLR (pt. 1161) 310 at 403-404 and Uduma v. Arunsi (2012) 7 NWLR (pt. 1298) 55 at 109 A – C.
It is submitted that the 15 witnesses’ depositions especially that of the Petitioner being part of the Petitioner’s Reply made the reply incompetent.
It is submitted that Paragraph 27 of the 1st Respondent’s Reply to the Petition only restated his qualification to contest the said election on the face of the Petitioner’s allegations in Paragraphs 24 and 25 of his Petition. So also is Paragraph 28 of the 1st Respondent’s Reply.
It is submitted that at the time the 1st Respondent filed his reply to the Petition and pleaded Paragraphs 27 and 28 issues were effectively joined by the parties on this issue. We are referred to Lewis & Peat (NRI) Ltd. v. Akhimien (1976) NSCC 360 at 363, Akeredolu v. Akinremi (1989) 2 NSCC 319 at 324 and Idris v. A.N.P.P (2008) 8 NWLR (pt. 1088) 1 at 96.
It is submitted that the Paragraphs of the Appellant’s Reply which the Tribunal struck out were grossly in violation of Paragraphs 14 and 16 of the 1st Schedule to the Electoral Act 2010 (as amended).
Learned Senior Counsel for the 2nd Respondent in a rather succinct argument reproduced Paragraphs 24 and 25 of the Appellant’s Petition, Paragraphs 27, 28 of the 1st Respondent’s Reply and Paragraph 9 of the Petitioner’s Reply and submitted that the Petitioner’s Reply Paragraphs 1, 3, 4, 10 – 14 averred to facts which have no bearing to the facts averred to in the 1st Respondent’s Reply.
The Court was referred to the Records of the Tribunal contained in pages 944 – 945 of the ruling of the Tribunal in part. It was submitted that the findings of the Tribunal and its conclusion are unassailable.
It is submitted that from the provisions of Paragraph 16(1) of the 1st Schedule to the Electoral Act, the Petitioner can only file a reply if and only if new facts have been raised in the reply by the Respondent. A look at the Paragraphs of the Petitioner’s Reply struck out, it is submitted, will reveal that those paragraphs were filed in violation of the provisions of Paragraph 16 of the 1st Schedule to the Electoral Act 2010 (as amended) as the Petitioner sought to introduce new facts which ought to have been included in the petition and were not necessitated by any averment in the reply filed by the 1st respondent.
The tribunal was therefore quite in order when it struck those paragraphs out, it was submitted.
It is submitted that the decision in Adedeji v. Awoduyilemi (1999) LRECN 53 at 73 does not help the case of the Appellant.
In his argument, Learned Counsel for the 3rd – 5th Respondents submitted that the Tribunal cannot be faulted in its ruling striking out Paragraphs 1, 3, 4, 5, 8 – 14 of the Petitioner’s Reply. He referred the Court to the ruling of the Tribunal in part contained at pages 953 – 955.
It is submitted that the decision of the Tribunal is unimpeachable and eloquently supported by authorities on the issue, the subject-matter of this appeal. We are referred to Adepoju v. Awoduyilemi (1999) 5 NWLR (pt. 603) 382.
It is submitted that a Plaintiff/Petitioner cannot raise in his Reply to a Statement of Defence or Reply to Respondent’s Reply a new issue which was not raised in his Statement of Claim/Petition as by so doing it will amount to a departure on the limitation placed by law and such averment will take the defendant by surprise as he will no longer be in a position to react to the new issue. Reliance is placed on Williamson v. North Western Railway Company (1879) 12 Ch.D 787 at 794, Akeredolu & 3 Ors. v. Lasisi Akinremi (1989) 3 NWLR (pt.108) 164 at 172, Idris v. A.N.P.P (2008) 8 NWLR (pt.1088) 96, Dingyadi v. Wamako (2007) 17 NWLR (pt. 1116) at 442 – 443, Azeez Akeredolu & 3 Ors. v. Akinremi & Ors. (1989) 3 NWLR (pt.107) 164 at 172. Adepoju v. Folorunso Awoduyilemi (1999) 5 NWLR (pt. 603) 364 and Olabanjo v. Ajiboye (1992) 1 NWLR (pt. 218) 473.
It is submitted that from all these authorities, it is crystal clear that a Petitioner’s option is to amend the Petition within the time frame of the provisions of the Electoral Act.
It is submitted that the Paragraphs struck out from the Petitioner’s Reply were an attempt by the Appellant to make a more robust case than that contained in the Petition in disregard of the provisions of Paragraph 16 of the First Schedule to the Electoral Act, 2010 (as amended).
Paragraph 16 (1) and (2) of the 1st Schedule to the Electoral Act 2010 as amended provides as follows:-
“16(1) If a person in his reply to the election petition raises new issues of facts in defence of his case which the petition has not dealt with, the Petitioner shall be entitled to file in the Registry within 5 days from the receipt of the Respondent’s Reply, a Petitioner’s Reply in answer to the new issues of facts, so however that –
a) The Petitioner shall not at this stage be entitled to bring in new facts, grounds or prayers tending to amend or add to the contents of the petition filed by him; and
b) The Petitioner’s Reply does not run counter to the Provisions of subparagraph 14 of this schedule.
(2) The time limited by subparagraph 1 of this paragraph shall not be extended.”
Paragraph 14(1) and (2) of the 1st Schedule to the Electoral Act 2010 (as amended) provides inter alia as follows:-
“14 (1) Subject to subparagraph (2) of this paragraph, the provisions of the Civil Procedure Rules relating to amendment of pleadings shall apply in relation to an election petition or a reply to the election petition as if for the words “any proceedings” in those provisions there were substituted with the words “the election petition or reply”.
(2) After the expiration of the time limited by –
a) Section 134(1) of this Act for presenting the election petition, no amendment shall be made:
i. Introducing any of the requirements of subparagraph (1) of paragraph 4 of this Schedule not contained in the original Election Petition filed, or
ii. Effecting a substantial alteration of the ground for, or the prayer in, the Election Petition, or
iii. Except anything which may be done under the provisions of Subparagraph (3) of this Paragraph, effecting a substantial alteration of or addition to, the statement of facts relied on to support the ground for, or sustain the prayer in the election petition.”
It can be seen from the foregoing provisions that the Federal High Court Rules in respect of amendment and reply are applicable to the Tribunal as well. The Petitioner is not allowed to introduce new issues or new facts that were not originally in the Petition by way of reply. This is because it will take the Defendant/Respondent by surprise as he will no be longer in a position to react to the new issue. There are plethora of authorities on this principle of law. See for example the authorities cited by Learned Counsel for the parties. They include: Adepoju v. Awoduyilemi (1999) 4 LRECN 53, Oje v. Babalola (1999) 4 NWLR (pt. 185) 267 at 278, Deniyi v. Fetuga (1990) 5 NWLR (pt. 150) 385 at 391, Akeredolu & 3 Ors. v. Akinremi & Ors. (1989) 3 NWLR (pt. 109) 164, 172 and Olabanjo v. Ajiboye (1992) 1 NWLR (pt. 218) 473.
In Paragraphs 24 and 25 of the Petition, the Appellant deposed as follows:-
“24. Your Petitioner avers that the 1st Respondent is not qualified to contest the said Governorship Election in Edo State having not met the minimum qualification to contest for the said office of Governor of Edo state as provided for in the 2010 Electoral Act (as amended).
25. Your Petitioner further avers that there is no nexus between the 1st respondent and the academic qualification he presented as his qualifications. The Petitioner shall found and rely on certified true copies of these qualifications at the trial of this Petition especially as depicted in FORM CF001 submitted to the 3rd respondent in 2007 and 2012 by the 1st Respondent.”
In response to the above issue, the 1st Respondent pleaded as follows in Paragraphs 27 and 28 of his reply:
“27. The 1st respondent in answer to Paragraph 24 of the Petition states that he was qualified to contest the Governorship Election in Edo State having met the qualification to do so in line with the constitutional provisions and extant laws as confirmed and accepted by the 3rd respondent and that being a second term Governor, his qualification was a common knowledge to the Petitioner against whom he contested the office in 2007 leading to his return upon successful judicial determination.
28. The 1st Respondent in answer to Paragraph 25 of the Petition states that the academic qualifications presented and submitted to the 3rd Respondent in 2007 and 2012 belonged to him, are his and relate to him (1st respondent). The documents which provide the linkage of the said academic qualifications to him were duly submitted to the 3rd Respondent who cleared him to contest the election. The 1st respondent shall lead evidence through his classmates and other family members to show that the academic qualification papers presented by him to the 3rd Respondent were his own, relate to his name and his family name.”
The Petitioner in reply to the 1st Respondent’s Reply averred thus:
“9. “In reply to Paragraphs 27 and 28 of the 1st Respondent’s Reply to the Petitioners’ Petition, the Petitioner states that the 1st Respondent is not the owner of the Secondary Modern School Certificate and the altered testimonial presented to the 3rd Respondent and the 1st Respondent does not have Primary School Leaving certificate.
PARTICULARS:
a. There was no Iyamoh Primary School, Iyamoh in 1957.
b. The 1st Respondent was barred from enrolling into and entering Primary one in 1957 having not attained the minimum age of 6 years by the Provisions of Western Region of Nigeria Gazette No.17 Vol. 5 dated 5th April 1956.
c. The Respondent dropped out of the Secondary School in the 2nd year and did not complete the mandatory 3 yrs course at Blessed Martins Secondary Modern School Jattu/Uzairue which he claimed to have attended between 1963 and 1965.
d. Unexplained discrepancies in the names on the various academic certificates presented as aforesaid.
e. Ruskin College, Oxford only provides educational opportunities for adults with little or no qualification which the said institution availed the 1st respondent in labour studies. There is no formal educational entry requirement in order to be admitted into Ruskin. Anyone above the age of 19 years that occupies or who occupies a trade union position is eligible to register. This is however subject to his or her union’s approval. It is purely a trade union studies that the 1st Respondent attended.
f. A diploma in Ruskin College is not an equivalent of WAEC as required by the Constitution of the Federal Republic of Nigeria.”
In examining the Paragraphs of the Petitioner’s Reply to the 1st Respondent’s Reply, the Tribunal after referring to the provisions of Paragraph 16 (1) and (2) of the Electoral Act 2010 (as amended) held at pages 944 – 946 thus:
“A careful examination of the various Paragraphs of the Petitioner’s Reply more particularly as cited or highlighted by the 1st Respondent and the Petitioner it will be seen that Paragraphs 3, 9, 10, 13 and 14 of the Petitioner’s Reply dealt extensively with facts pertaining to the qualification of the 1st Respondent which were not in the Petition filed. Moreso, a passionate reading of Paragraphs 8, 9, 10, 20, 27 and 28 of the 1st Respondent’s Reply to the Petition will show that the 1st Respondent only replied to the allegations made by the Petitioner in the relevant Paragraphs of the Petition and that can in no way be a license for the Petitioner to aver to new facts which ought to be in the original Petition filed. The law clearly provides that such new facts shall be introduced only by way of an amendment of the original Petition provided that the application is made within 21 days after the date on which the result of the election was declared… We have also painstakingly read the contents of Paragraph 4, 5, 8, 11 and 12 of the Petitioner’s Reply which are aimed at replying to the facts averred in Paragraphs 12(b), 12(c), 24, and 25, 31 and 36 of the 1st Respondent’s Reply to the Petition respectively. We are of the view that there is nothing in those Paragraphs which amounts to new issues of facts in defence of the Petition by the 1st Respondent which the petition has not dealt with. The averments in Paragraph 4, 5, 8, 11 and 12 of the Petitioner’s Reply therefore are in infringement of Paragraph 16(1) and (2) of the First Schedule to the Electoral Act 2010, as amended… In the whole, the conclusion we reach is that Paragraphs 1, 3, 4, 5, 8 – 14 are incompetent and are accordingly struck out while Paragraphs 6 and 7 of the Petitioner’s Reply are competent and are allowed.”
Having also gone through the pleadings, I agree with Learned Senior Counsel for the 2nd Respondent and the Learned Counsel for the 3rd – 5th Respondents that the findings and conclusion of the Tribunal are unimpeachable and sound in law.
From the Provisions of Paragraph 16 (1) of the 1st Schedule to the Electoral Act, a petitioner can only file a Reply if new facts have been raised. A look at the Paragraphs of the Petitioner’s Reply struck out will reveal that those paragraphs were filed in violation of the provisions of Paragraph 16 of the 1st Schedule to the Electoral Act. I do not agree with Learned Senior Counsel for the Appellant that the Appellant was guided by and mindful of Paragraph 16(1) (a) and (b) of the Electoral Act as amended as he claims for if he was the Petitioner would not have averred to the facts contained in paragraphs 1, 3, 4, 5, 8-14 struck out by the Tribunal. Also if Learned Counsel for the Appellant had read the case of Adepoju v. Awoduyilemi (supra) relied upon by all Counsel in this matter he would have realized that it does not help his argument but the Respondents’ arguments. If the Paragraphs of the Petitioner’s Reply struck out are allowed the 1st Respondent would be taken by surprise. The fairness of any trial can be tested by the maxim audi alteram partem and the other side cannot be properly heard if it is taken by surprise. See Emegolurue v. Ohadigbo (1973) 4 SC 113 and Orizu v. Anyaegbunem (1978) 5 S.C. 21 at 33 – 34.The facts contained in the Paragraphs of the Petitioner’s Reply struck out ought to have been included in his Petition. The facts averred therein cannot by any stretch of the imagination be regarded as a reply to the facts averred in the 1st Respondent’s Reply.
From all that I have stated elsewhere in this judgment, the only issue for determination in this appeal should be answered in the positive – and against the Appellant.
Having resolved the only issue for determination against the Appellant, the Appeal should be dismissed.
It is accordingly dismissed. Parties to bear their costs.
GEORGE OLADEINDE SHOREMI, J.C.A.: I had the privilege of reading the judgment just delivered by my learned brother, Hon. Justice J. S. Abiriyi, J.C.A. He had dealt with all issues raised and I adopt same as mine. I have nothing to add to the well considered judgment.
I agree that the appeal is unmeritorious and ought to be dismissed. I abide with all consequential orders made therein including order as to cost.
TOM SHAIBU YAKUBU, J.C.A.: I have read the draft of the judgment of this court just delivered by my learned brother JAMES SHEHU ABIRIYI, J.C.A. I am in agreement with his reasoning and conclusion that the appeal is lacking in merits and should be dismissed.
I too dismiss it and abide by the order as to costs.
Appearances
K. O. Obamogie Esq., S. O. Agwinede Esq., P. O. Itua Esq., D. O. Inegbeboh Esq., R. I. Okunbo (Mrs.), Sylvanus Oriakhena Esq., Nosaze Adaze Esq., F. E. Ulifun Esq., C. Akhigbe Esq., E. Avboraye Esq., – for the Appellant.For Appellant
AND
Chief Wole Olanipekun S.A.N., Rickey Tarfa S.A.N., O. A. Omonuwa S.A.N., (S. P. Imolode Esq., O. O. Samuel Esq., O. Ohenhen Esq., Oladipo Osinowo Esq., F. Erewele Esq., Sir Adams Aliu Esq., Jatto Topa Esq., Nelson Imafidon Esq., Kudus Shehu Malami Esq., Dayo Adesina Esq.,) – for the 1st Respondent
Adetunji Oyedipo S.A.N., Ken Mozia SAN, Rotimi Oguneso S.A.N., (with Nnamonso Ekanem Esq. V. E. Ohiosunmua Esq., Dr. Edoba Omoregie, R. O. Oaihimire (Mrs.), G. A. Oladejo Esq., F. Omo-Osadiaye Esq., Christopher Ebosele Esq., A. O. Eikhor Esq., Tajudeen Alade Esq., Santos Owootori Esq., Mrs. N. I. Ekunwe, O. O. Erhahon, R.I.D. Okezie, Mrs. E. Evbayiro, Miss E. Aisien) – for the 2nd Respondent.
E. R. Emukpoeruo Esq., N. H. Auta Esq., D. O. Owolabi (Mrs.) – for the 3rd – 5th Respondents.For Respondent
