NATHANIEL AGUNBIADE & ANOR v. BUSAYO OLUWOLE OKE & ORS (2015)

NATHANIEL AGUNBIADE & ANOR v. BUSAYO OLUWOLE OKE & ORS

(2015)LCN/7934(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 2nd day of September, 2015

CA/AK/EPT/HR/68/2015

RATIO

APPEAL: GROUND OF APPEAL; WHETHER A GROUND OF APPEAL MUST ARISE FROM THE LIVE ISSUES AT THE TRIAL

ELECTION PETITION: WHETHER PARTICULARS IN SUPPORT OF A GROUND IN AN ELECTION MUST BE CLEARLY STATED

This Court in Goyol v. INEC (No 2) (2012) 11 NWLR (Pt 1311) 218 at 230 held that particulars in support of a ground in an election petition must be clearly stated. The object of giving particulars in support of a ground of petition is to compel the parties to define precisely the issues upon which the case between them is to be contested to avoid element of surprise by either party and also to ascertain the nature of non-compliance and the burden of proof on the petitioner. per. JAMES SHEHU ABIRIYI, J.C.A.

ELECTION PETITION: THE PENALTY FOR NOT ACCOMPANYING THE PETITION WITH A LIST OF WITNESSES AND WHETHER THE FAILURE TO DO THE SAME IS A GROUND FOR DECLARING THE PETITION INCOMPETENT

However this Court had decided as far back as 2008 in INEC v. Iniana (2008) 8 NWLR (Pt 1088) 182 that the penalty for not accompanying the petition with a list of witnesses ends with the Secretariat and is not a ground for declaring the petition incompetent as held by the Tribunal. At page 200 of the report Owoade JCA stated the position of the law thus:
“As against the argument put forward by the learned SAN for the appellants the incompetence or otherwise of a petition by virtue of the “accompaniment rule”…………starts and ends on the table of the Secretary to the Tribunal ………..The Courts are of course at liberty to determine the competence of a petition otherwise than for non compliance with the provision of sub-paragraph 1 of paragraph 1 of the Practice Direction” per. JAMES SHEHU ABIRIYI, J.C.A.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

1. NATHANIEL AGUNBIADE
2. ALL PROGRESSIVES CONGRESS Appellant(s)

AND

1. BUSAYO OLUWOLE OKE
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. RESIDENT ELECTORAL COMMISSIONER/RETURNING OFFICER, OSUN STATE
5. THE ELECTORAL OFFICER ORIADE LOCAL GOVERNMENT COUNCIL
6. THE ELECTORAL OFFICER OBOKUN LOCAL GOVERNMENT COUNCIL
7. THE RETURNING OFFICER ORIADE/OBOKUN FEDERAL CONSTITUENCY
8. THE PRESIDING OFFICERS FOR UNITS 1 TO 13 WARD 7, ESA-OKE
9. THE PRESIDING OFFICERS FOR UNITS 1 TO 13 WARD 4, ILASE, OBOKUN LOCAL GOVERNMENT
10. THE PRESIDING OFFICERS FOR UNITS 1 TO 8 WARD 2, OBOKUN LOCAL GOVERNMENT Respondent(s)

JAMES SHEHU ABIRIYI, J.C.A. ( Delivering the Leading Judgment): This appeal is against the ruling delivered on 22nd July 2015 by the National And State Houses of Assembly Election Tribunal holden at Osogbo, Osun State. The 1st Appellant contested the election conducted on 28th March 2015 to the House of Representatives on the platform of the All Progressives Congress (APC) against the 1st Respondent and other candidates and lost. The 1st Respondent contested under the Platform of the Peoples Democratic Party (PDP) and won. The Appellants were not satisfied with the results of the election and filed a petition at the Tribunal. Each of three sets of Respondents i.e. 1st, 2nd and 3rd 10th Respondents raised a preliminary objection to the competence of the petition. The Tribunal consolidated all three preliminary objections.

After hearing all the parties on the preliminary objections raised by the Respondents, the Tribunal in a considered ruling struck out the petition for being incompetent.
The Appellants therefore approached this Court by a notice of appeal containing seventeen (17) grounds of appeal from which they

presented the following issues for determination:
(1) Whether the Tribunal can decline jurisdiction on the ground that the petition was headed “In the Presidential and Assembly Election Tribunal” notwithstanding the fact that other parts of the heading showed that the election was for Oriade/Obokun Federal Constituency of the House of Representative and the fact that the Constitution establishes only one election tribunal for National and State House of Assembly elections in Osun State. (GROUNDS 1, 2 & 10)
(2) Whether the petition does not substantially complied (sic) with the provisions of the relevant law as regards facts or particulars in support of grounds; list of witnesses and parties to be affected by the petition and whether disclosing the identities of witnesses is a requirement of law. (GROUNDS 6, 7, 8, 9, 13, 14, 15 & 17)
(3) Whether the Tribunal, inter alia by repeating its ruling of 17th June, 2015 stating that but for authorities asking it to focus on substance than form the outcome of the petition would have been different, had not made up its mind to dismiss the petition even

before pre-hearing [GROUND 4]
(4) Whether a lower Court can legally and without violating the doctrine of stare decisis engage in criticizing the judgment of a Court superior to it and refuse to be bound by it for not being explicit as done by this Tribunal (GROUNDS 3 & 5)
(5) Whether a tribunal can substitute the issue it unilaterally formulated and which is diametrically opposed to what was canvassed by parties before it and rule on same without calling for fresh argument and/or address from parties. (GROUNDS 3 & 5)
(6) Whether the multiple applications filed by each of the 1st & 2nd Respondent (sic) on the same subject matter and/or repeating a prayer in the earlier application are not gross abuse of Court process. (GROUNDS 16)

On his part, the 1st Respondent submitted the following issues for determination:
1. Whether the learned trial tribunal was not right when it declined jurisdiction over a petition that was not meant for it but meant for an unknown and non-existing tribunal (Grounds 1, 2, 3, 4, 5 and 10)
2. Whether learned

trial tribunal was not right when it held that the petition did not comply with mandatory provisions of paragraph 4 of the First Schedule to the Electoral Act, to wit: by failing to state the parties interested in the petition and providing list of witnesses to be called at the trial (Grounds 6, 7, 8 and 9)
3. Whether the petition met the particularization requirement stipulated in Goyol v. INEC (No. 2) (2012) 1 NWLR (Pt. 1311) 218. (Ground 13, 14 and 15)
4. Whether the tribunal was not right when it struck out 4th – 10th Respondents on the ground that they are not necessary parties to the petition (Grounds 11 and 12)
5) Whether the 1st and 2nd Respondents? two sets of motions are gross abuse of Court process (Ground 16)

The 2nd Respondent formulated the following three issues for determination:
1. Whether the lower Tribunal was right when it struck out the Appellants’ Petition as being incompetent.
2. “Whether the Lower Tribunal was right in striking out the names of the 4th – 10th Respondents from the petition as non juristic

persons.
3. Whether the lower Tribunal was right in holding that the petition of the Petitioners did not comply with the mandatory provisions of Paragraph 4 (1)(a) of the First Schedule to the Electoral Act, 2010 (as amended).

The 3rd-10th Respondents adopted the issues for determination formulated by the Appellants.
Arguing issues 1 and 4 together learned counsel for the Appellants referred the Court to the heading of the petition and submitted that the Respondents objected to the hearing of the petition simply because of the first line in the heading of the petition which reads thus:
In the Presidential and Assembly Election Tribunal”
It was submitted that subsequent lines in the heading of the petition show the State where the Tribunal is situated, the town of its holden, the nature of the election, the legislative house involved and the constituency apart from parties involved in the election.
It was submitted that the Tribunal ought to have heard the objection with the petition on the merit as provided by paragraph 12 (5) of the First Schedule to the Electoral Act.

The

Tribunal, it was submitted, erroneously concluded that the heading of the petition goes to the jurisdiction the petition. It was submitted that the wrong heading can only be a misnomer and as such a procedural issue. We were referred to Addis Ababa & 1 OR v. Adeyemi (1976) 12 SC 51, Moses v. Ogunlabi (1975) 4 SC 81, Surakatu v. Nigeria Housing Dev. Society Ltd & Ors (1981) 12 NSCC 92.

It was submitted that the Tribunal attached undue importance to mere technicalities. This was at variance with the decision of the Supreme Court in Surakatu v. Nigeria Housing Dev. Society Ltd (supra).
It was submitted that all the cases cited by the Tribunal and distinguished by it pointed to only one fact, that is, that wrong heading of processes are mere blunders which are mere irregularities. These cases include: Maska v. Ibrahim (1999) 4 NWLR (Pt. 599) 415 at 421, Ajadi v. Ajibola & ors (2004) 14 NWLR (Pt 898) 91, Ngige v. Obi (2006) 14 NWLR (Pt 999) 1 at 229 and Clev Josh Ltd & 2 ORS v. Tokimi & 3 ors (2008) 13 NWLR (Pt 1104) 422.
It was submitted that the case of Okon v. Ibom (2010) LPELR – 4722 a Court of Appeal decision which the

Tribunal relied upon was reached per incuriam and cannot stand against the decisions of the Supreme Court in Clev Josh Ltd v. Tokima 3 ors and Maska v. Ibrahim
It was submitted that on the authorities referred to above no one could claim to have been misled by the first line of the heading of the petition.
It was submitted that the recourse to Section 285 of the Constitution FRN, 1999 to say that the Tribunal so headed is unknown to law was unnecessary.

It was submitted that by whatever name it is called the Constitution established only one Tribunal for Osun State and that was where the petition was filed. Any other name in the heading it was submitted is a mere misnomer.
It was submitted on issue 2 that nowhere in paragraph 4 of the First Schedule to the Electoral Act or Form TF 001 is the subtitle “Parties affected by the Petition’ required as held by the Tribunal.
It was submitted that what is required in a petition is that the petition “must state clearly the facts … the grounds on which the petition is based and the relief sought by the petitioner. For this the Court was referred to paragraph 4(1)(d) of the First Schedule to the

Electoral Act and Nwankwo v. Yar’adua (2010) 12 NWLR (Pt 1209) 518 at 579.
It was submitted that the penalty for not complying with paragraph 4(5)(a) of the First Schedule to the Electoral Act is provided for in paragraph 4(6) of the Schedule. That is where the list of witnesses is not supplied the petition shall not be accepted for filing by the secretary. Therefore the Tribunal wrongly held that non-compliance with paragraph 4(1) and renders the petition incompetent and liable to be struck out. Reliance was placed on INEC v. INIAM (2008) 8 NWLR (Pt. 1088) 182 at 200 C – H.
The tribunal, it was submitted should have ordered an amendment of the petition to reflect the initials of the thirty – nine (39) witnesses instead of striking it out.

On issue 3, learned counsel for the Appellants referred to a remark by the Tribunal in its ruling on an application for pre-hearing conference notice and submitted that this was evidence of bias by the Tribunal that had from the onset made up its mind to dismiss the petition. Things were made worse according to learned counsel for the Appellants when the Tribunal repeated its comment in the ruling now

appealed against. Apart from this, the Tribunal descended heavily on the appellants’ counsel with adjectives like “non-chalance of counsel in applying for the issuance of pre-hearing notice”, “to say the least, this is nothing but an attempt to mislead the tribunal etc. It was submitted that hostility to counsel and or litigant is good ground to suspect likelihood of bias. We were referred to Azuokwu v. Nwokanma (2005) 11 NWLR (Pt 937) 537 at 551.
It was submitted that threats to dismiss the petition by the Tribunal but for the fact that substance not form should be paramount even before pre-hearing session when the petition was struck out can be nothing other than likelihood of bias. It was submitted that sin of counsel or inadvertence cannot be visited on the client.

On issue 5, it was submitted that the issue for determination was “Whether the 3rd – 4th Respondents are juristic persons in the sense of being known to law.” But the Tribunal changed the issue to whether or not the 4th – 10th Respondents are necessary parties.

It was submitted that the issue whether or not the 4th – 10th Respondents were juristic persons as argued by the parties

was not decided upon by the Tribunal.

However without calling for address on whether the 4th – 10th Respondents are necessary parties the Tribunal unilaterally struck out their names from the petition.
It was submitted that a Court of law must confine itself to the issues raised before it by the parties and if it formulates an issue not argued by the parties, it must allow the parties to address it. We were referred to Welli & Anor v. Okechukwu & Ors (1985) 6 SC 132 at 145 – 146.

On issue 6, it was submitted that there was abuse of process from the different motions filed by the Respondents and this is evident particularly on the issue of juristic person repeated by 1st and 2nd Respondents. It was submitted that the two motions apart from being irritating and annoying were employed by the respondents to ensure that the petition is not heard even though time is of the essence.

Two applications, it was submitted, were similar and seeking of similar prayers in different applications filed simultaneously is an abuse. The Court was referred to Agwasim v. Ojichie (2004) 10 NWLR (Pt 882) 613 at 622.
The 1st Respondent raised a preliminary

objection to the competence of Grounds 2, 3, 4, 16 and 17 of the Appellants’ grounds of appeal as well as paragraphs 4.05 and 4.06 of the Appellants’ brief of argument.

According to the 1st Respondent grounds 2, 4, 16 and 17 of the grounds of appeal did not arise from or relate to the ruling appealed against. It is the law, it was submitted, that a ground of appeal must arise from or relate to the judgment of the Court and must complain against the ratio decidendi of the case and not the obiter dictum.

Ground 2, it was submitted, is not attacking any findings of the Tribunal as the Tribunal merely traced the history of Section 285 of the Constitution.
On ground 4, it was submitted that the intention to strike out the petition if truly expressed was extraneous to the ruling complained of.

?The complaint contained in ground 16, it was submitted, is not contained in the ruling of 22nd July 2015. Nowhere in the entire ruling, it was submitted, did the Tribunal rule on any processes being an abuse of process or otherwise. It was submitted that although the Tribunal in an earlier ruling of 10th July 2015 ruled that the 1st and 2nd Respondents

motions were not an abuse of Court process the Appellants have not appealed against that ruling.
Ground 17, it was submitted can only arise where evidence was adduced.
The petition having been struck out in limine without taking evidence, ground 17 could not stem from the ruling of 22nd July 2015.
It was submitted that grounds 2, 4, 16 and 17 are incompetent and should be struck out as any ground of appeal which does not stem or emanate from the decision of the Court appealed against is incompetent and should be struck out. We were referred to Congress for Progressive Change v. INEC (2011) 18 NWLR (Pt 1279) 493 at 522, Onafowokan v. WEMA BANK PLC (2011) 12 NWLR (Pt 1260) 24 at 39 and Hope Democratic Party v. Obi (2011) 18 NWLR (Pt 1278) 80. It was further submitted that the issues formulated from the incompetent grounds should also be struck out. These are issues 1, 2, 3 and 6.

It was also submitted that arguments contained in paragraphs 4.05 and 4.06 of the appellants’ brief of argument are not covered by any ground of appeal or any issue formulated by the Appellants in their brief of argument. None of the parties argued paragraph

12(5) of the First schedule to the Electoral Act and the Tribunal did not consider it in its ruling. The Court was urged to discountenance the argument on it.

Arguing 1st Respondent’s issue 1, learned counsel for the 1st Respondent submitted that the Tribunal was right when it held that the error in heading the Tribunal goes to its jurisdiction to hear and determine the petition. He submitted that the law will not allow a person to ventilate his complaints before a non-existing Court or Tribunal. There is, it was submitted no Court or tribunal known as “Presidential and Assembly Election Tribunal.”

The petition, it was submitted, was addressed to Tribunal unknown to law. Even if the “Presidential and Assembly Election Tribunal” is known to law, the trial Tribunal was not that Tribunal.

It was submitted that Moses v. Ogunlabi (1975) 4 S.C. 81 and Addis Ababa v. Adeyemi (1976) 12 SC 51 held that heading a process in the wrong Court is a fundamental defect rendering the process incompetent. The petition in the instant case was not just headed in the wrong Court but was headed in an unknown and non-existent Tribunal which was a much more

fundamental defect. The case of Surakatu v. Nigeria Housing Development Society (supra), it was submitted, discussed whether defect in bond of appeal executed by Appellant deprives the Federal Court of Appeal jurisdiction to entertain the appeal.

In the case of Surakatu (supra) the Appellant, it was submitted and allowed to remedy the defect. But the question here is, can the Appellants here remedy this defect by substituting a non-existing Tribunal with an existing tribunal? The answer is in the negative. It was submitted that the position of the Supreme Court with regards to wrongly heading of Court processes has not been overruled.

It was submitted that the Appellants can only talk of substantial justice when a competent suit is in existence.
The Court was urged to discountenance allegations of bias against the Tribunal contained in paragraph 6.00 to 6.19 of the Appellant’s brief. It was submitted that making of uncomplimentary comments against a party and his counsel in a judgment does not by itself amount to judicial bias. Likewise repeating parts of an earlier ruling wherein the Court warned counsel cannot in anyway suggest bias.

issue 2, it was submitted that the holding by the Tribunal that the filing of the list of witnesses is mandatory should not be disturbed.
Paragraph 4(1)(a) of the First Schedule to the Electoral Act, it was submitted, is unambiguous. It states that the petition must specify the parties interested in the Election petition and there is nowhere in the petition the parties interested in the petition were stated. Sub-paragraph 7, it was submitted provides the consequences for failure to comply with paragraph 4(1) of the First Schedule. The sub-paragraph states that an election petition that does not comply with sub-paragraph 1 or any of the sub-paragraphs is defective and may be struck out by the Tribunal.
It was submitted that the Appellants must file a list of witnesses disclosing the identity of the witnesses which may be done by presentation of initials and or alphabets. We were referred to Okereke v. Yar’Adua & Ors (2008) 6 NWLR (Pt. 1082)

It was submitted that where the Secretary of the Tribunal accepts a defective process for filing, then it is the duty of the Tribunal to declare the process defective and strike it out.

It was

further submitted that the fact that the defective petition was erroneously accepted by the Secretary of the Tribunal cannot remedy the defect and cannot validate the ab initio void petition.
The provisions of the First Schedule to the Electoral Act, it was submitted, are mandatory and election petitions being sui generis insistence on adherence to the provisions is not technical justice. It was submitted that failure to comply with subparagraphs of paragraph 4 has been held to be fatal. Reliance was placed on Ujam v. Nnamani (2006) 2 EPR 155, Emeje v. Positive (2010) 1 NWLR (Pt 1174) 48 at 77 and Buhari v. Yusuf (2003) 14 NWLR (Pt 841) 446 at 498 – 499.

On 1st Respondent’s issue 3, it was submitted that the Tribunal rightly held that the particulars of some of the grounds for the petition were insufficient. It was submitted that in the absence of particulars supporting the grounds, all the grounds for the petition are incompetent and liable to be struck out.
It was submitted that although the Tribunal held that the grounds and the particulars were all mixed-up that was not the basis of the holding that the particulars supplied were

insufficient.

On 1st Respondent’s issue 4 which is whether the Tribunal was not right when it struck out 4th – 10th Respondents on the ground that they were not necessary parties, the Court was referred to Section 137(3) of the Electoral Act. It was submitted that by this provision it was unnecessary to join the 4th – 10th Respondents.
It is not correct as contended by Appellants’ counsel that the issue whether 4th – 10th Respondents were necessary parties was not argued, it was submitted. The 3rd Respondent, it was submitted, argued the issue. We were referred to paragraph 51(1) of the First Schedule to the Electoral Act and Ngige v. Akunyili (2012) 15 NWLR (Pt 1323) 343 at 381.

It was submitted that although the Tribunal did not pronounce on whether or not the 4th – 10th Respondents are juristic persons, the failure to do so was not fatal to the judgment. We were referred to Lawan v. Zenon Petroleum & Gas Ltd & ors.
It was submitted that even if the Tribunal had determined that the 4th – 10th Respondents were juristic persons in favour of the Appellants it would not have changed the fact that they were not necessary parties to the

proceedings.

On issue 5 of the 1st Respondent which is whether two sets of motions are an abuse of process, it was submitted that Ground 16 from which the issue was formulated does not emanate from the ruling of the Tribunal delivered on 22nd July 2015 and is therefore incompetent. In any case, what the Appellants call two motions were two preliminary objections which can be properly before the Court without constituting an abuse of Court process.

Arguing the appeal, learned Senior Counsel for the 2nd Respondent submitted that the Tribunal was right in striking out the petition for being incompetent. It was submitted that the incompetent heading of the petition is a feature in the petition that acts as a virus which took away the competence of the Tribunal in hearing and determining the petition. Reliance was placed on Madukolu & Ors v. Nkemdilim (1962) 2 SCNLR 341 and Section 133(1) and (2) of the Electoral Act 2010 (as amended).

?It was submitted that from the above provision of the Electoral Act, it is clear that an election petition must be presented to the competent Tribunal or Court in accordance with the provisions of the Constitution

or under the Electoral Act 2010 (as amended).

The petition presented before the Tribunal, it was submitted was not presented before a competent Tribunal because the petition was presented to a Court unknown to law and this goes to the root or foundation of the petition. The 2nd Respondent’s grouse, it was submitted, simply is that the petition was addressed to the wrong Tribunal that is Presidential and Assembly Election Tribunal a Tribunal unknown to Law and not empowered to adjudicate on the subject matter of the Appellants’ petition.

It was submitted that the “Presidential and Assembly Election Tribunal” is not the competent Tribunal to handle the petition complaining about the election and return of a candidate with respect to membership of the National Assembly as in the case of the Appellants herein.
Rather Section 285(1) of the 1999 Constitution FRN (as amended) vests on the National and State Houses of Assembly Election Tribunals to the exclusion of all other Courts and Tribunals with the original jurisdiction to hear and determine petitions as to whether any person has been validly elected as a member of the National Assembly, the term

of office of any person under the Constitution has ceased, the seat of a member of the Senate or a member of the House of Representatives has become vacant and whether a question or petition brought before the election Tribunal has been properly or improperly brought.

Part of the jurisdiction vested in the Tribunal is the jurisdiction to determine whether a petition is properly or improperly brought and that was the essence of the preliminary objection filed by the 2nd Respondent herein, it was submitted.
It was submitted that the petition was not meant for the Tribunal but for another Tribunal titled ” The Presidential and Assembly Election Tribunal’ which is unknown to law. It was submitted that the said Tribunal is not part of the Courts and Tribunals established under the Constitution and also does not have the jurisdiction to determine the prayers endorsed on the petition.

It was further submitted that the Tribunal lacks the jurisdiction to entertain a petition directed to another Tribunal even more so an unknown Tribunal. Therefore, the petition, it was submitted was dead on arrival and cannot be resurrected by an appeal.

?It was

submitted that Section 285(1) of the 1999 Constitution FRN (as amended) will reveal that two Tribunals are created. These are the National and State Houses of Assembly Election Tribunal on the one hand and the Governorship Election Tribunal on the other hand. It is clear, it was submitted that the draftsmen deliberately refused to combine election into an office of the Execution with that of the Legislature. Learned Senior Counsel maintained that the wrong heading of the Appellants’ petition is constitutionally wrong and not just a misnomer as the Appellants have argued in their brief of argument.
The Court was also referred to Section 239(1) of the 1999 Constitution (as amended) which provides for the Court of Appeal to hear and determine any question as to whether any person has been validly elected President or Vice-President etc.

?It was submitted that the arguments of the Appellants that the Tribunal was wrong to have struck out their petition since other parts of the heading showed that the election was for Oriade/Obokun Federal Constituency of the House of Representatives and the fact that the Constitution establishes only one election

Tribunal for National and State Houses of Assembly elections in Osun State does not derogate from the fact that the petition as headed is incompetent.
It was submitted that the case of Surakatu v. Nigeria Housing Dev. Society Ltd & Anor (supra) and other cases cited by the Appellants in support of their arguments do not avail the Appellants because those cases relate to originating processes at the trial Court but processes on appeal which “are subsequent processes”.

In any event, it is trite law, it was submitted that election petition is sui generis. It was submitted that the sui generis nature of an election petition makes it different from the ordinary civil cause or matter wherein any fundamental defect in an election petition cannot be condoned by the Tribunal or Court as in this case.

On 2nd Respondent’s issue 2 which is whether the Tribunal was right in striking out the names of the 4th – 10th Respondents from the petition, it was submitted that the 4th – 10th Respondents are non-juristic personalities having regards to the provisions of Section 137(3) of the Electoral Act 2010 (as amended). We were referred also to Fawehinmi v. N. B. A.

(No 2) (1989) 2 NWLR (Pt 105) 558 at 598, Reptico S. A. Geneva v. Afribank (Nig) Plc (2013) 14 NWLR (Pt 1373) 172, Ataguba & Co. v. Gura (Nig) Ltd (2005) 8 NWLR (Pt. 927) 429 and a few other cases.

On 2nd Respondent’s issue 3 which is whether the Tribunal was right in holding that the petition did not comply with the mandatory provisions of paragraph 4(1)(a) of the First Schedule to the Electoral Act 2010 (as amended), it was submitted that the Tribunal was right in holding that the petition as presented did not comply with the mandatory provisions of paragraph 4(1)(a) of the First Schedule to the Electoral Act 2010 (as amended) in that the parties interested in the petition were not specified.

Apart from this, the Appellants did not accompany their petition with the list of witnesses they intend to call in proof of their petition. What the Appellants filed is what they headed “Indication of witnesses” and stated simply in the body of that document that The Petitioner (sic) shall be calling about forty (40) persons as witnesses”
It was submitted that the Tribunal rightly found and held that the Appellants breached paragraphs 4(1)

and 5(a) of the First Schedule to the Electoral Act 2010 (as amended) and the petition was liable to be struck out.
3rd – 10th Respondents objected to grounds 3, 4, 10, 12, 13, 14 and 16 of the Grounds of Appeal.
Grounds 3, 4, 10 and 14, it was submitted are not part of the ratio/reasons for the decision of the Tribunal, it was submitted. Ground 3, it was submitted, attacks the judgment on the principle of stare decisis which is a fresh issue that cannot be traised without the leave of this Court. The Court was referred to Iwuoha v. NIPOST (2003) 8 NWLR (Pt 822) 308 at 322, Adda v. Liman (2012) 4 NWLR (Pt 1290) 243 at 264 – 265 and Usman v. Kaduna State House of Assembly (2007) 11 NWLR (Pt 1044) 148 at 184.

It was submitted that Grounds 3, 4, 10 and 14 of the grounds of appeal are not competent on the ground that they do not arise from the ratio decidendi of the judgment.
Ground 12, it was submitted is unnecessary and should be struck out.

Ground 13, it was submitted, alleges misdirection and it is the law that where a ground of appeal alleges misdirection, sufficient particulars of the misdirection must be provided. The Court was

referred to Lucas Pharm Ltd v. Roche Nig. Ltd (1995) 1 NWLR (Pt 369) 28.
Ground 16, it was submitted is a fresh issue for which leave ought to be sought.
Turning to the main appeal, it was submitted that the Tribunal was right in declining jurisdiction to hear the petition on the ground that there is no tribunal known as Presidential and Assembly Election Tribunal in Osun State. The petition it was submitted was fundamentally defective which defect was incurable and robbed the Tribunal of jurisdiction.

It was submitted that the only Tribunal established by the Constitution under Section 285(1) of the 1999 Constitution FRN (as amended) is the National Assembly Election Tribunal with exclusive jurisdiction to hear and determine petitions whether any person has been validly elected as a member of the National Assembly or not. These constitutional powers given to the National Assembly Election Tribunal, it was submitted, are to the exclusion of any other Court or Tribunal. We were referred to Buhari v. Yusuf (2003) 14 NWLR (Pt 841) 446.
It was submitted that the institution of the petition before a Tribunal unknown to law and the Constitution

is fatal to the petition.
It was submitted that the case of Ajadi v. Ajibola (2004) 16 NWLR (Pt 898) 9, relied upon by the Appellants is not applicable to this petition because the originating process and other processes in that case were rightly headed except the judgment and it was held that the mistake was not that of the petitioner.

On 3rd – 10th Respondents’ issue 2 which is on whether sufficient particulars were supplied for the grounds of the petition, it was submitted that the Appellants did not plead sufficient facts and particulars required to sustain the petition. Reliance was placed on Ojukwu v. YarAdua (supra), Uzodinma v. Udenwa (2004) 1 NWLR (Pt 854) 303 at 345 and Belgore v. Ahmed (2013) 8 NWLR (Pt 1355) 60 at 94.

On 3rd – 10th Respondents’ issue 3 which is whether the Tribunal had made up its mind to dismiss the petition, it was submitted that the answer is in the negative.
It was submitted that the Tribunal was exercising its judicial functions when it made the comments complained of by the Appellants. It was submitted that the comment made in the ruling was not biased but a statement of fact. In any case, the

comment complained of was a mere obiter dictum.
The comment being a mere obiter dictum, it was submitted, cannot constitute a ground of appeal. Thus ground 4 of the Grounds of Appeal should be struck out as well as issue 3 in the Appellants’ brief of argument.

On 3rd – 10th Respondents’, issue 4 which is on whether the Tribunal refused to be bound by judgments of Superior Courts, it was submitted that the Appellants rightly argued that the Tribunal distinguished cases referred to it.
It was submitted that for a case to be authority for another, the facts of the two cases must either be the same or at least similar. We were referred to Fawehinmi v. N. B. A. (No 2) (1989) 2 NWLR (Pt 105) 558 at 650, Anaedobe v. Ofodile (2001) 5 NWLR (Pt 706) 365 at 375 and Clement v. Iwuanyanwu (1989) 3 NWLR (Pt 107) 39.
It was submitted that Ajadi v. Ajibola (2004) 16 NWLR (Pt 398) 9 and Ngige v. Obi (2006) 14 NWLR (Pt 999) 1 relied upon the Appellants are distinguishable from the instant petition.
The Tribunal, it was submitted, followed the age long principle of stare decisis while considering the cases cited and arriving at its decision.
It was

submitted that the facts and circumstances upon which the petition was dismissed are clearly distinguishable from the cases cited and relied upon by the (Petitioners) Appellants.

On issue 5, it was submitted that it was unnecessary to join the 4th – 10th Respondents, the 3rd Respondent having been made a party to the petition. Reliance was placed on Section 137(3) of the Electoral Act 2010 and paragraph 51 of the First Schedule to the Electoral Act 2010 (as amended).
The Tribunal, it was submitted, did not unilaterally formulate this issue and decide on it.
3rd – 10th Respondents aligned themselves with arguments of the 1st and 2nd Respondents on issue 6.

?Replying on ground 2, to the preliminary objection of the 1st Respondent the Appellant pointed out that the Respondents brought their application under S. 285 of the Constitution and the Tribunal quoted copiously from the old Section 285 of Constitution. From what the Tribunal said which is quoted in the reply, it cannot be said that it merely traced the history of legislative election petitions. The tribunal, it was submitted even used the said Section 285 of the Constitution to hold that

it was not qualified to sit over Presidential election that appears in the heading of the petition shutting its eyes to part of the heading which is ” …… Assembly Election Tribunal.”
There was therefore no basis for asking that ground 2 be struck out.

On ground 16, it was submitted that the appeal is against decisions and not decision of the Tribunal.
On ground 17, it was submitted that the Tribunal considered the evidence before it before striking out the petition.

A ground of appeal must arise from the live issues at the trial and not any hypothetical assumption by an Appellant. This means that the ground of appeal must relate to the decision and should be a challenge to the validity of the ratio of the decision appealed against. See Oloruntoba-Oju v. Abdul-Raheem & Ors (2009) 13 NWLR (Pt 1157) 83.
Learned counsel for the 1st Respondent urged this Court to strike out ground 2 of the grounds of appeal because the Tribunal merely traced the history of Section 285 of the 1999 Constitution FRN.

With respect to learned counsel for the 1st Respondent, it does not appear to me that the Tribunal merely traced the history of Section 285

of the Constitution. It appears to me rather that Section 285 of the 1999 Constitution FRN (as amended) was one of the reasons the Tribunal declined jurisdiction to entertain the petition. At page 565 of the record of appeal, the Tribunal stated thus:
“To be able to resolve this issue, we may need to look at Section 285(1) itself …..”
It went further to say at page 567 that:
?…the drafters of the amended Section 285 of the Constitution did not mean to have and so did not create the ‘Presidential and Assembly Election Tribunal’ when they created the National and State Houses of Assembly Election Tribunal.
The Legislature having therefore not created or contemplated ‘the Presidential and Assembly Election Tribunal’ would the filing of an election petition before it as is the case in the instant petition affect the competence of the petition itself as well as the jurisdiction of this Tribunal to hear it.”

?It is clear from the foregoing that ground 2 of the grounds of appeal has arisen from the live issues in the appeal. I therefore decline to strike it out.
However, I agree

with learned counsel for the 1st Respondent that grounds 4 and 16 of the grounds of appeal do not arise from the ruling of the Tribunal appealed against and should be struck out. I agree with learned counsel for the 1st Respondent too that ground 17 of the grounds does not arise from the ruling as no evidence was relied on to determine the preliminary objection. Therefore issue of weight of evidence does not arise in this appeal.
I also agree with learned counsel for the 3rd – 10th Respondents that ground 3 is a fresh issue and no leave of Court was sought to raise it. I also agree with him that grounds 4, 10 and 16 do not arise from the ruling appealed against and should be struck out.
The preliminary objections of the 1st Respondent and 3rd – 10th Respondents succeed in part. For this reason, grounds 3, 4, 10, 16 and 17 of the grounds of appeal are hereby struck out.
Appellants issue 3 formulated from ground 4 is also struck out. Issue 6 from which ground 16 is formulated is struck out. Issue 4 is also struck out.

I agree with learned counsel for the 1st Respondents that this Court should disregard arguments on paragraph 12 (5) of First

Schedule to the Electoral Act 2010 (as amended). That argument has no basis and should be disregarded. It is neither a ground of appeal nor was it an issue before the Tribunal. I will accordingly discountenance it.
I will determine this appeal on the surviving issues for determination presented by the Appellants.
The petition of the Appellants filed at Tribunal, that is, the National And State Houses of Assembly Election Tribunal was headed “In The Presidential And Assembly Election Tribunal.” The written statements on oath of the witnesses that the Appellants intend to call, list of documents and “Indication of witnesses” were all similarly headed.
In Famfa Oil Ltd v. Attorney-General of the Federation & Anor (2003) 9 – 10 NSCR Uguh JSC stated thus:
“I should perhaps mention in the above regard that this court for quite some time now has consistently shifted away from the narrow technical approach to justice which characterized some earlier decisions of courts on various matters and now pursues instead, the course of substantial justice. Accordingly, Courts of law should not be unduly tied down by technicalities,

particularly where no miscarriage of justice would be occasioned. Justice can only be done in substance and not by impeding it with mere technical procedural irregularities that occasion no miscarriage of Justice. See Consortium M.C. v. N.E.P.A (1992) 5 NWLR (part 246) 132 at 142; Falobi v. Falobi (1976) 1 NMLR 169, Bello v. Attorney-General of Oyo State (1986) 6 NWLR (pt. 828), Okonjo v. Dr. Odje (1985) 10 SC 267.”

It is not difficult to see from the petition of the Appellants filed at the National and State Houses of Assembly Election Tribunal that the election complained of is National Assembly election for Oriade/Obokun Federal Constituency. It was this Tribunal that was established to entertain these petitions. It was this particular Tribunal that was constituted to hear and determine the petitions on this particular election in Osun State. All the Respondents filed their replies to the petition. None of them suggested that they were misled.

In my view, although the heading of the Tribunal was wrong, this was a mistake or inadvertence of counsel. It was not a fundamental error that robbed the Tribunal of the jurisdiction to

entertain the petition. See Kakih v. PDP (2014) 7 SCNJ 65. In my view the reference to the Tribunal as the ‘Presidential and Assembly Election Tribunal’ instead of the National and State Houses of Assembly Election Tribunal by the Appellants is a mere irregularity and did not rob the Tribunal of the jurisdiction to entertain the petition. The Tribunal wrongly declined jurisdiction on the ground of this error committed by appellants’ counsel.
At page 573 of the record of proceedings, the Tribunal stated thus:
“In the instant case, we can only sit over ‘National and State Houses of Assembly’ cases, certainly not over ‘Presidential’ cases.”
But the petition before the Tribunal was not a presidential election petition. If it were the Tribunal would rightly have declined jurisdiction. It was on an election to the House of Representatives and the Tribunal had jurisdiction to entertain it.
Issue 1 is therefore resolved in favour of the Appellants.

This Court in Goyol v. INEC (No 2) (2012) 11 NWLR (Pt 1311) 218 at 230 held that particulars in support of a ground in an election petition must be clearly stated. The object of

giving particulars in support of a ground of petition is to compel the parties to define precisely the issues upon which the case between them is to be contested to avoid element of surprise by either party and also to ascertain the nature of non-compliance and the burden of proof on the petitioner.
At page 578 of the record of appeal, the Tribunal made the following finding:
“Now the particulars the petitioners supplied in the petition do not indicate whether they are in terms of ground 1 or 3. Even aside from this, particulars (5)(6) and (7) simply state what the petitioners will be relying on to prove their case. We do not think that this represents the kind of particularization that the law talks of here. In this sense we do not think that the petitioners have met the requirement of particularization of the grounds of the petition as enjoined by Goyol v. INEC (No 2) and we so find and hold.”

Although the Appellants in ground 1 challenged the results of the whole Constituency on the basis of non compliance with the provisions of the Electoral Act and Manual for the election, the Provision of the Electoral Act and manual not

complied with were not pleaded. The total number of voters in the constituency was not pleaded. The particulars of votes attracted or omitted as a result of the alleged non compliance was not given. On ground 2, the Appellants failed to plead the result forms and figures entered in them to show that the 1st Respondent was not duly elected by a majority of the lawful votes cast at the election. Also the number of voters was not pleaded.

Inspite of the foregoing, I am of the view that the particulars contained at page 6-7 of the record of appeal sufficiently define the issues upon which the petition is to be contested and there would be no element of surprise on any party.
This issue is therefore resolved in favour of the Appellants and against the Respondents.

It should be noted that the above issue is only an arm of issue 2 presented for determination by the Appellants.
The other arm of the issue is whether the Appellant substantially complied with the requirement for the listing of witnesses and parties to be affected by the petition.
Election petitions have certain peculiar features which make them sui generis. Defects or

irregularities which in other proceedings are not sufficient to affect the validity of the claim are not so in election petitions. A slight default in complying with a procedural step could result in fatal consequences for the petition. The Electoral Act 2010 (as amended) contains mandatory provisions upon which a competent petition can be based. See Kalu v. Uzor (2004) 12 NWLR (Pt 886) 1.
Paragraphs 4(1)(a), 4(5)(a), 4(6) and 4(7) of the First Schedule to the Electoral Act 2010 as amended read as follows:
4(1) An election petition under this Act shall –
(a) Specify the parties interested in the petition;
……………………………………………………………………
(5)(1) The election petition shall be accompanied by —
(a) a list of the witnesses that the petitioner intends to call in proof of the petition.
(6) A petition which fails to comply with sub-paragraph 5 of this paragraph shall not be accepted for filing by the Secretary
(7) An election petition which does not comply with sub-paragraph 1 of this paragraph or any provision of that sub-paragraph is defective and may be struck

out by the Tribunal or Court.”

At page 576 of the record of appeal the Tribunal made the following finding:
“A statutory requirement under paragraph 4(1)(a) , where the compulsive word ‘shall’ is used cannot be a cosmetic requirement. Our understanding of paragraph 4(1)(a) is that a paragraph in the petition needs to be dedicated to specifying particularly parties interested in the petition. Our finding therefore, is that the petitioners did not specify in the petition the parties Interested as enjoined by paragraph 4 (1)(a) of the First Schedule to the Electoral Act 2010 (as amended) .

I have again read the petition and it is clear that paragraph 4(1)(a) has been sufficiently complied with. See page 3 of the petition. The Tribunal was therefore wrong to hold that the parties interested in the petition were not specified.
The Tribunal found at page 576 of the record of appeal thus:
“To start with a document headed ‘Indication of witnesses’ and which simply states in its body that ‘the petitioner shall be calling about forty (40) persons as witnesses’ is not the list of witnesses envisaged in

paragraph 4(5)(a) and we so find and hold.”

The list of witnesses at page 60 of the record of appeal titled ‘Indication of Witnesses’ is only an indication that the Appellants shall be calling about forty (40) persons as witnesses. Paragraph 4 (5) (i) (a) of the First Schedule to the Electoral Act 2010 (as amended) provides that the election petition shall be accompanied by a list of witnesses that the petitioner intends to call in proof of the petition.

compliance with the provision of sub-paragraph 1 of paragraph 1 of the Practice Direction”

Although the petition was not accompanied by a list of witnesses this is no ground for striking it out.
From the foregoing, I am of the view that this issue too should be resolved in favour of the Appellants. It is therefore resolved in favour of the Appellants and against the Respondents.

Turning to the last issue for determination which is whether the Tribunal can substitute an issue it unilaterally formulated which is diametrically opposed to what was canvassed by the parties before it and rule on same without calling for fresh argument/address from parties.
The complaint of the Appellants on this issue is that the issue before the Court was whether the 3rd – 10th Respondents are juristic persons known to law. But that the Tribunal suo motu changed it to whether they were necessary parties. That without allowing parties to address it on whether the 3rd – 10th Respondents were necessary parties, the Tribunal proceeded to strike out the 4th – 10th Respondents as unnecessary parties and did not rule on whether the 3rd – 10th Respondents were

juristic persons.

However, learned counsel for the 3rd – 10th Respondents pointed out that they raised two objections. The first was whether the 3rd Respondent “INDEPENDENT ELECTORAL COMMISSION” not “INDEPENDENT NATIONAL ELECTORAL COMMISSION” was a juristic person. Secondly whether by virtue of the provisions of the law especially Section 137(3) of the Electoral Act 2010 (as amended) the 4th – 10th Respondents are not necessary parties.
On whether the 3rd Respondent was a juristic person, the Tribunal at page 574 stated thus:
“As regards the 3rd respondent, the issue is that the word “National” was omitted from the name and so what was sued was “Independent Electoral Commission (IEC) instead of “Independent National Electoral Commission (INEC)”. The interposition of the acronym “INEC” in the name of the 3rd Respondent has shown it to be an error of omission which can be corrected.”

As the issue before the Court was whether or not the 3rd Respondent was a juristic person and not whether 4th – 10th Respondents were juristic persons as claimed by the Appellants, it cannot be correct on the above holding of the

Tribunal to say that the Tribunal failed to rule on it.
Appellants also contended that the parties did not address the Court on whether or not the 4th – 10th Respondents were necessary parties. With respect to learned counsel for the Appellants, I agree with learned counsel for the 1st Respondent that the Appellants were only being parsimonious with the truth. See page 365 – 366 of the record of appeal. The said pages contain part of the address of learned counsel for the 3rd – 10th Respondents. At page 365, it was submitted inter alia as follows.
“It is also significant to submit that by virtue of the provisions of Section 137 (3) of the Act , the 4th – 10th Respondents are not necessary parties by the extant provisions of the law. In the very words of the statute, S.137(3) states that:
‘If’ the petitioner complains of the conduct of an Electoral Officer, a Presiding or Returning Officer, it shall not be necessary to join such officers or persons notwithstanding the nature of the complaint and the commission shall, in this instance, be:
a) Made a respondent and
b) Deemed to

be defending the petition for itself and on behalf of its officers or such other person.”
It is clear from the foregoing that the 3rd – 10th Respondents counsel argued the issue of whether the 4th – 10th Respondents were necessary parties. If the Appellants or any of the other parties declined to do so, they should not be heard to complain that they were denied fair hearing.

As pointed out elsewhere in this judgment what the Tribunal was called upon to determine was whether the 3rd Respondent was a juristic person and this was resolved by including “National” in the name of the 3rd Respondent.
Section 137(3) which the Tribunal relied on to strike out the names of the 4th – 10th Respondents deals with necessary parties. Although the 4th – 10th Respondents may not be necessary parties, they could be desirable parties. Therefore if the Appellants think they have a case against them they should not be prevented from making them parties to the petition.
The Tribunal in my view wrongly struck out the names of the 4th – 10th Respondents.
This issue is therefore resolved in favour of the Appellants.
All issues having been

resolved in favour of the Appellants, the appeal is allowed by me. The ruling of the Tribunal delivered on 22nd July 2015 striking out the petition is hereby set aside.
It is hereby ordered that the petition be heard on the merits by another Tribunal other than the one that delivered the ruling set aside by me.

MOJEED ADEKUNLE OWOADE, J.C.A. : I agree.

MOHAMMED AMBI-USI DANJUMA, J.C.A. :
I have read in draft the lead Judgment of Abiriyi, JCA just delivered and I agree that the appeal be allowed.
This appeal revolves round what I will call the reign of technicality over the spirit of Justice.
The issues or subjects of complaints, forming as they were the fulcrum of the grounds of appeal and emanating from the Judgment of the trial Tribunal are the followings:
1. Whether the name “Presidential and Assembly Election Tribunal” related to an existing competent Tribunal
2. The non distinct indication of a list of witnesses and effect
3. The list of candidates and their scores (whether indicated or not)
4. The naming of and inclusion of some respondents, even after

the Electoral Commission had been named/sued as a statutory Respondent.
I shall start, with the 4th fundamental question of the inclusion of the 4th – 10th Respondents. The trial Tribunal had held them to be unnecessary i.e. Not necessary parties and struck out their names from the petition and on the ground that Section 137 (3) of the Electoral Act does not so provide for their inclusion.

Section 137 (3) of the Electoral Act 2010 (as amended) does not Prohibit the joinder of the 4th – 10th respondents in an election petition. The said section provides thus:
“If the petitioner complains of the conduct of an Electoral Officer, a Presiding Officer or Returning Officer, it shall not be necessary to join such officers or persons notwithstanding the nature of the complaint and the commission shall, in this instance be-
(a) made a respondent; and
(b) deemed to be defending the petition for itself and on behalf its officers or such other persons.”

It is the trial Tribunal’s view that despite paragraph 51 of the First schedule to the Electoral Act , these ‘unnecessary’ parties described as

agents/representatives of INEC – 3rd Respondent must be and were struck out.

This stand, I do not agree with. For one, commonsense shows that what is ‘unnecessary’ is not necessarily forbidden or illegal. It may well be superfluous, but that does not make it unwanted or undesirable to whoever wishes such a person or entity as a party. The election of a person to be sued is purely within the domain and right/discretion of a petitioner. The question of success or otherwise or the proof of a cause of action against a nominated defendant/respondent as in the 4th – 10th respondents is an entirely different consideration. It does not affect or relate to the competence of a suit or the Jurisdictional vires of the Tribunal in any way.
A petitioner, in any case must prove all his allegations against the parties he had impugned in his petition.

In the Appellants’/Petitioners’ petition, allegation of malpractices, stuffing of electoral matters, falsification and violations of the Electoral process/cum non compliance were alleged against the 3rd Respondent’s officials. Those criminal allegations must be proved.
It cannot be, without a hearing

given to them. They cannot be indicted without being joined as Respondents. To do otherwise will be a truncation of their right of fair hearing.

Furthermore, there also lies the risk, a clear and present danger that at the hearing of the petition, the front loaded statements on oath against those Respondents cannot be admitted. They will be expunged and/or disregarded as going to no issue as they have been removed as parties. That will be to fetter the petitioner’s case, as those statements cant be adopted.

Pleadings relating to them would be expunged or no evidence can be led thereto. In Egolum V. Obasanjo (1999) 7 NWLR (Pt. 611) 335 @ 397, the Supreme Court held thus:
“The principle of our law is that no person shall be guilty without being given an opportunity to defend himself. Every person against whom an allegation is made must be confronted with that allegation so that he can offer his defence, The petitioner who complains against an Electoral officer, a presiding officer, a Returning officer or any other officer involved in the election by conduct has initiated the election must presume that officer a necessary party

and must make him a party…”
The word “shall” in the phrase “shall not be a necessary party,” in the relevant section of the extant Electoral Act 2010 as amended, is in my view, permissive. It is a discretionary word and not an obligation to refrain.
All that the extant Section 37 (3) of the Electoral Act has done is to obiviate the adverse effect of such a petition by not visiting it with the penalty of incompetence as decided in Egolum v. Obasanjo (supra) and Buhari V. Obasanjo .

The stance of the trial Tribunal is similar to an analogy of a contention that the original or primary evidence of a public document is not admissible merely because the law states that the only admissible secondary evidence thereof is a certified copy of the document thereof.
Just as the Supreme Court in PDP v. INEC (2014) 17 NWLR (1437) 525 @ 563 clarified the position, in secondary and primary evidence of public documents, I will so clarify that the joinder of the 4th – 10th Respondents, even if superfluous and unnecessary, does not convert them to non-juristic, and incompetent and undesirable parties. They were wrongly struck out as respondents,

therefore; as what is not prohibited under pain of penalty is not for bidden or unlawful.

On the list of witnesses; I find the witnesses and their indicia disclosed in-situ their statements on oath of each of those witnesses.
Though not isolated for the ease in issuing witnesses summonses on them at the hearing, the secretary of the Tribunal had, in any case accepted the petition for filing and the Respondents have not shown what injustice that had been caused to them by the non-isolation of these witnesses in a list attached or incorporated to the petition. In the same manner, the parties and the candidates and their scores have been disclosed in the body of the Petition.

As for the Heading of the Petition in the presidential and Assembly Tribunal, I do not see this as an irredeemable aberration that goes to the jurisdiction of the trial Tribunal.
The parties and the Tribunal were not misled. The content of the petition and the prayers therein are clear indication that the petition was meant for filing and was indeed filed in the intended and competent Tribunal.
The Secretary of the Tribunal did not reject the petition; it was

accepted, paid for and trial commenced after the filing of all necessary processes.

I agree with the Appellants’ learned counsel and reiterate the current position of the law that the Courts have since moved away from the dispensation of technical Justice to doing substantial Justice.
Since the fusion of law and equity in 1875, the waters of law and justice now flow in the same canal; the same stream. This flow has led to such decisions as Senator Iyiola Omisore & Anor v. Ogbeni Rauf Adesoji Aregbesola & 2 ors Sc/104/15 (2015).
In Omidiran V. Etteh (2011) 2 NWLR (pt 1232) 471 @ 502 par. B – C it was held thus:
“In election petition proceedings, it is in the interest of justice that parties are given the opportunity to ventilate their grievances without undue regard to technicalities.
Errors or mistakes may be made, but parties should not be unduly shut out. See also HDP v. INEC (2009) 8 NWLR (pt.1143) 297 par. D – H.

Elections and Election petitions are sensitive matters. They involve not only the interests of the political parties and the candidates at the election; they also involve the interests of the general

public who voted i.e. the electorate. They have a stake in knowing or having their grievances as postulated by their candidate ventilated so that their public right on representative choice would be made certain!
To deny such right on the simplistic pillar of reasons such as raised and accepted by the trial Tribunal and the striking out the petition thereupon those reasons is, with respect to the trial Tribunal, creating a picture of the law standing erect and Justice prostrate before it. See Bello V. State 1983 1 SC 1
In Surakatu V. Nigeria Housing Development Society Ltd & Ors (1981) 12 NSCC 92, the Apex Court held, thus:
“I am in complete agreement with the view that the primary consideration ought to be to do substantial Justice between the parties and that undue importance ought not to be accorded to mere technicalities.”

I am in agreement with the views of the Appellants’ learned counsel; and also agree that the review and critique as done, of the decision of this Court, per Onnoghen, JCA (as he then was) is an affront on the settled principle of stare decisis and precedent.
An Inferior Court cannot so hold that a binding

decision was reached per incuriam. It can only distinguish it.
The said decision, being in tandem with the Supreme Court’s stand, made it the more reason for a compulsive obedience and compliance.

In Suleman V. COP (2008) LRCN; Niki Tobi JSC condemned such attitude of disobedience.
Appellants’ Counsel was on a strong wicket in so submitting. Ajadi V. Ajibola & Ors (2004) 16 NWLR (Pt.898) 91, is apt and inclusive of its concurring views is authority in support of the view that a cause of action conferring jurisdiction on the trial Tribunal had been disclosed and the error in the name or Heading of the Tribunal was a mere error, misnomer or defect that could be ignored or amended.

The amendment would not be such that is prohibited as it would not relate to the grounds of the petition or any of the Replies filed.
I am also of the view that the invitation by the Appellants’ learned counsel to hold that the earlier case of Catherine Okon V. Peter Ibom (2010) LPELR 4722 CA was reached per incuram, is in order.
That decision, to the extent that it goes against the grain of the principle in Surakatu’s case (supra), cannot be a

binding decision. Whether or not parties were called upon to address the Court on the divergent and earlier decisions on the issue or not, is immaterial. The law is said to be at the breast plate of the Judge.
This Court is bound by its earlier decisions such as CLEV JOSH LTD & ORS v. TOKIM & 3 ORS (2008) 13 NWLR (pt. 1104) 422 NGIGIE v. OBI (2006) 14 NWLR (Pt.599) 15 @ 421 Ajadi v. Ajibola & ors (2004) 16 NWLR (Pt. 898) 91 and the host of others cited by the Appellants’ counsel. We have no reason not to stick to those decisions in preference to the Catherine Okon case ; this is more so that the Apex Court affirms this stance.

A holistic reading of the petition (as all documents should be read) and as enjoined will clearly reveal that the harmony disclosed from same is that of a petition lodged at a National and State House of Assembly Tribunal for Osun State for a legislative (House of representatives) petition as filed.
See Mbani v. Bosi & Ors (2006) 26 NSCQLR (pt. 1) 583 @ 602 for this principle of interpretation of Judgments and/or statutes.
I must commend the Appellants’ Learned Counsel for the brilliance, dexterity and

depth of research and fixity of thought expressed in his arguments.
The Brief is a good piece of advocacy, particularly on all issues as ventilated.
It is upon the aforesaid thought and the few remarks and the fuller reasons proffered in the lead Judgment of My Lord, Abiriyi, JCA, which I agree with, that I too, allow this appeal and I abide with the consequential order made therein.

Appearances:

CHIEF MICHAEL ABAYOMI BISADE ALLIYU, FCI Arb with him, DR. JOEL ANWOO, ABDULRASAK ADEOYE, ESQ., SIYANBOLA J. S. (MISS), BIOLA LADAPO ESQ., THELMA EJEMEN OTAIGBE-OLULEYE (MRS) AND BEN T. OGUNJOBI, ESQ.
For Appellant(s)

OLUWASINA OGUNGBADE, ESQ. with him, ABIMBOLA AROWOSEBE (MRS) and CHUKWUDI MADUKA, ESQ. for 1st Respondent

ROLAND OTARU (SAN) FCI Arb., KANMI AJIBOLA, ESQ., IDOWU AKINSOLA ESQ., SALIHU ALIYU, ESQ., ABIEYUWA A. EVBUOMWAN (MISS), SUMBO AFOLABI ESQ., CHUKWUEBUKA W. UDEH, ESQ., HASHIM ABIOYE, ESQ., ADEDOYIN A. ENISAN, ESQ. and SAMUEL ECHEONWU, Esq. for 2nd Respondent

DELE ADESINA (SAN) FCI Arb with him, EZEKIEL AFOLAYAN ACI Arb, KEHINDE BELLO (MRS), KAYODE OTUFALE, Esq. and ADEOLU ADESUYI, ESQ. for 3rd – 4th Respondent
For Respondent(s)

Appearances

AND

OLUWASINA OGUNGBADE, ESQ. with him, ABIMBOLA AROWOSEBE (MRS) and CHUKWUDI MADUKA, ESQ. for 1st Respondent

DELE ADESINA (SAN) FCI Arb with him, EZEKIEL AFOLAYAN ACI Arb, KEHINDE BELLO (MRS), KAYODE OTUFALE, Esq. and ADEOLU ADESUYI, ESQ. for 3rd – 4th RespondentFor Respondent

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