OGUNYEMI OLUMUYIWA OJO & ANOR v. PEOPLES DEMOCRATIC PARTY (PDP) & ORS
(2008)LCN/3031(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of August, 2015
CA/AK/EPT/HA/52/2015
RATIO
WHERE THE PARTICULARS OF THE ERROR OF LAW OR MISDIRECTION ALLEGED MUST BE RLATED TO THE GROUND OF APPEAL
It is the particulars of the error of law or misdirection alleged that will ensure that the ground of appeal is sufficiently set out. Where appropriate, those particulars should be set out or tabulated where a passage is quoted from the judgment appealed from as representing the error or misdirection. See Osasona v. Ajayi & Ors (2004) 18 NSCQR 40.
A ground of appeal and its particulars go together. Where the particulars in support of the ground are not related to the ground, the ground is incompetent. See Hambe v. Hueze (2001) 1 SC 26. 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. OGUNYEMI OLUMUYIWA OJO
2. ALL PROGRESSIVES CONGRESS (APC) Appellant(s)
AND
1. PEOPLES DEMOCRATIC PARTY (PDP)
2. OLOTU FATAI
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. RESIDENT ELECTORAL COMMISSIONER, ONDO STATE Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is one of the appeals against the ruling of the National And State Houses of Assembly Election Petition Tribunal sitting at Akure, Ondo State dismissing some election petitions alleged to have been abandoned by the Petitioners. CA/AK/EPT/HA/50/2015 Festus Oladipo Aregbesola & Anor v. Adesanya Kemisola Adenike & 2 Ors and CA/AK/EPT/HA/51/2015 Pastor Akingboye Leke David & Anor v. Prince Abayomi B. Akinruntan & 2 Ors delivered this morning by this Court are on the same issue. I will therefore be very brief.
?1st Appellant was a candidate of the All Progressives Congress (APC) in the April 11th 2015 election to the Ondo State House of Assembly. The 2nd Respondent was the candidate of the Peoples Democratic Party (PDP) in the said election. The 2nd Respondent was declared the winner of the election and returned as duly elected member representing Akoko North-East Constituency in the Ondo State House of Assembly.
The 1st Appellant was dissatisfied and filed a petition at the Tribunal. The tribunal dismissed the petition on the 10th July, 2015 on the ground that the Appellants did not
comply with the provision of Paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 (as amended).
The Appellants have therefore appealed to this Court against the ruling on a single ground of appeal from which they presented the following issue for determination:
Was the Honourable Tribunal right in its conclusion that the pre-hearing notice filed by the petitioners on May 26th 2015 was premature and incompetent such that it invalidated all proceedings and processes filed as well as the Petition itself?
The 1st Respondent raised a preliminary objection on the following grounds:
(i) The appellants filed a Notice of Appeal dated 16th July, 2015 and relied on same in their Brief of Argument dated 31st July 2015.
(ii) The particulars of the sole ground of appeal are verbose and argumentative.
In the alternative, the 1st Respondent formulated the following issue for determination:
Whether the National and State Houses of Assembly Election Petition Tribunal was not right in dismissing the Appellant’s petition for failure to comply with the mandatory provision of Paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended).
?The 2nd Respondent raised
the same preliminary objection.
In the alternative, the 2nd Respondent formulated the same issue for determination with the 1st Respondent. No useful purpose will be served in reproducing both the grounds of objection and the lone issue for determination.
The 3rd and 4th Respondents on their part formulated the following lone issue for determination:
Whether the learned trial Judges of the Tribunal were not right in holding that the application for pre-hearing notice filed by the petitioners in the petition on the 26th May, 2015 was premature and incompetent having been filed before issues were completely joined and exchanged with the concomitant effect of rendering the petition incompetent.
Arguing their preliminary objections, learned counsel for the 1st and 2nd Respondents submitted that the particulars of the sole ground of appeal are verbose and argumentative and therefore incompetent.
It was submitted that particulars of the ground of appeal must be precise, concise and direct to the point. We were referred to: Order 6 Rule 2(3) of the Court of Appeal Rules 2011 and Splinters (Nig) Ltd v. Oasis Finance Ltd (2013) 18 NWLR (Pt 1358) 188.
?It was submitted that a
brief of argument argued on an incompetent notice of appeal is bad and should be discountenanced. We were referred to APGA v. Ohakim (2009) 4 NWLR (Pt 1130) 116 at 147.
Learned counsel for the Appellants submitted that no party was prejudiced when the Tribunal dismissed the petition. It was submitted that Paragraph 53(2) of the First Schedule to the Electoral Act 2010 (as amended) has binding effect on the Court and parties.
It was submitted that in the case of Sa’eed v. Yakowa (2013) 7 NWLR (Pt 1352) 124 at 145 the Supreme Court held that after steps have been taken, it would be inappropriate to entertain objection of the nature the Honourable tribunal raised. we were referred also to Agagu v. Mimiko (2009) ALL FWLR (Pt 462) 1122 at 1157, Abubakar v. Nasamu (2012) 17 NWLR (Pt 1330) 407 and Ezeudu v. John (2012) 7 NWLR (Pt 1298).
?Learned senior counsel for the 1st Respondent submitted that a pre-hearing conference notice application that is made prematurely is incompetent which renders the petition incompetent and liable to be dismissed. He relied on Gebi v. Dahiru (2012) 1 NWLR (Pt 1282) 560 at 616, Ohaka v. Eze (2010) ALL FWLR (Pt 525) 380 and Maitsidau v.
Chidari (2003) 16 NWLR (Pt 1114) 553 at 575.
It was submitted that the case of Sa’eed v. Yakowa (2013) 7 NWLR (Pt 1352) 1241 is not available to the appellants who cited it.
2nd Respondent’s arguments are the same with those of the 1st Respondent. I am therefore not inclined to reproduce them. I will therefore not reproduce them.
Learned counsel for the 3rd and 4th Respondents submitted that where the application for pre-hearing notice pre-dates the last reply in a petition, such application becomes pre-mature and fatal to the petition and the petition is liable to be dismissed if no fresh application for pre-hearing notice is made after the petitioner’s reply or respondent’s reply whichever comes first. Learned counsel relied on Gebi v, Dahiru (2012) 1 NWLR (Pt 1282) 560 and Ohaka v. Eze (2010) ALL FWLR (Pt 525) 380.
?It is the particulars of the error of law or misdirection alleged that will ensure that the ground of appeal is sufficiently set out. Where appropriate, those particulars should be set out or tabulated where a passage is quoted from the judgment appealed from as representing the error or misdirection. See Osasona v. Ajayi & Ors (2004) 18 NSCQR 40.
A
ground of appeal and its particulars go together. Where the particulars in support of the ground are not related to the ground, the ground is incompetent. See Hambe v. Hueze (2001) 1 SC 26. The ground of appeal in this case is a passage quoted from the judgment of the Tribunal. The particulars of the error of law alleged must therefore be sufficiently set out. The particulars are therefore not verbose or argumentative. The notice of preliminary objection is therefore hereby overruled and dismissed.
It is common ground among all the parties in this appeal that the petition was dismissed due to the pre-mature application for pre-hearing notice. The Tribunal at page 286 of the record of appeal stated thus:
“In conclusion, we find and hold that the application for pre-hearing notice filed by the Petitioners in this case on 26th of May, 2015 was premature and incompetent; having been filed before issues were completely joined and exchanged.
?Being incompetent and therefore a nullity, it tantamounts to non-compliance with the mandatory provisions of Paragraph 18(1) of the First Schedule to the Electoral Act 2010 as amended, resulting in fatal consequences to the
petition.”
The case of Gebi v. Dahiru (supra) relied upon by the tribunal was irrelevant to this case as the issues in that appeal were:
1. Whether the letter dated 1st June, 2001 written to the Tribunal by counsel to the 1st and 2nd Respondents applying for issuance of pre-hearing notice complied and carried out the intention and requirement of Paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended);
2. Whether the allegation by the appellant that the 1st and 2nd Respondents’ letter of 1st June, 2001 was backdated was in the circumstances not misleading and whether the trial tribunal was right in ignoring the allegation.
In the circumstances, Gebi v. Dahiru (supra) could not be authority for the proposition that the pre-mature filing of an application for pre-hearing session by a petitioner leads to abandonment of the petition under Paragraph 18(4) of the First Schedule.
What his Lordship Dongban-Mensem was quoted as saying in Gebi v. Dahiru (supra) at page 616 of the report was an obiter dictum. In Emmanuel & Anor v Nwaebilia & Ors (2011) LPELR 9201, Jauro JCA stated as follows:
Paragraph 18 therefore is not intended to punish a diligent
petitioner who has ignited and kick started process for hearing of his petition.
In the case at hand, the tribunal had already activated pre-hearing based on petitioner’s application which commenced on 4th August, 2011. The application for dismissal of the petition on ground of failure to apply for pre-hearing was argued in the course of pre-hearing on 17/8/2011. The ruling dismissing the petition as an abandoned petition was also delivered in the course of pre-hearing session ——. The petition in the circumstance of this case was obviously not abandoned but on course —.”
And in Ezeudu v. John (2012) 7 NWLR (Pt 1298) 1 at 21- 22, Adumien JCA stated thus:
?”I am of the opinion that the tribunal also erred in dismissing the appellant’s petition on the ground that the application by the appellant, for issuance of pre-hearing notice (Form TF 007) was premature. If the tribunal had calmly and painstakingly read the provision of Paragraph 18 of the First Schedule to the Electoral Act 2010 (as amended) it would (sic) been clear to it that the intention of the legislature is to ensure that parties are diligent in the prosecution and or defence of election petitions.
Paragraph 18(4) of the First Schedule to the Electoral Act 2010 (as amended) is not intended to truncate a petition merely because the petitioner is ‘overzealous’ in the prosecution of his petition. That sub-paragraph is intended to punish a petitioner who is indolent in the prosecution of his case.”
Again in the unreported case of Adeyemi & Anor v. Melaye Appeal No: CA/A/EPT/380/15 Adumein JCA maintained his position in Ezeudu v. John (supra) when he said:
“—–as rightly pointed out by the learned Senior Counsel for the appellants, since the tribunal had commenced pre-hearing session on the appellants’ petition on 27/05/2015, after the exchange of Form TF 007 and Form TF 009 based on the appellants’ application for the issuance of pre-hearing notice the very purpose intended by Paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended) had been achieved in the matter. It is also on record that the tribunal had even made some binding orders during the pre-hearing session held on 27/05/2015 – – Since no injustice had been caused to any of the respondents, the tribunal ought to have invoked the provisions of Paragraph 53(2) of the First
Schedule to the Electoral Act 2010 (as amended) to discountenance the 1st Respondent’s motion on notice. This point was loudly pronounced by the Supreme Court in Haruna Y…s Sa’eed & Anor v. Patrick Ibrahim Yakowa & Anor (2013) 7 NWLR (Pt 1352) 124 at 164-165 …”
See also the unreported judgment of this Court in CA/AK/EPT/HA/50/2015 Festus Oladipo Aregbesola & Anor v. Adesanya Kemisola Adenike & 2 Ors and CA/AK/EPT/HA/51/2015 Pastor Akingboye Leke David & 1 Or v. Prince Abayomi B. Akinruntan & 2 Ors delivered earlier this morning.
After the Appellants had applied for pre-hearing notice and all parties filed pre-hearing information sheets, pre-trial commenced. See pages 262-263 of the record of appeal – proceedings of the tribunal on 10/6/2015. See also pages 264-266 proceedings of the Tribunal on 17/6/15 and proceedings of the Tribunal contained at pages 267-270 of the record of appeal.
In my view, the Appellants were only being cautious in order to avoid falling into the trap laid down in Paragraph 18(4) of the First Schedule to the Electoral Act 2010 (as amended). Nevertheless, the Tribunal found that they did and
proceeded to dismiss the petition. In my view, that was wrong. It cannot be said that they applied for the pre-hearing notice late. It cannot be said that they did not apply for the pre-hearing notice. These are, in my view, the circumstances under which the Tribunal was entitled to dismiss the Appellants, petition under Paragraph 18(4) of the 1st Schedule to the Electoral Act 2010 (as amended) . They were not entitled to dismiss the petition under Paragraph 18(4) of the First schedule for premature application for pre-hearing notice particularly when pre-hearing was in session.
The tribunal undoubtedly was able to commence pre-trial as shown above on the basis of the pre-mature application for pre-hearing notice by the Appellants. It cannot therefore turn round to dismiss the petition as an abandoned petition.
I therefore hold that the petition was wrongly dismissed as an abandoned petition.
In the circumstances, the lone issue for determination is resolved in favour of the Appellants.
The ruling of the National And State Houses of Assembly Election Petition Tribunal in Petition NO: EPT/AK/HA/13/2015 delivered on 10th July, 2015 at Akure is hereby set aside.
The petition
is remitted back to the Tribunal which is hereby ordered to hear same expeditiously.
Parties to bear their respective costs.
MOJEED ADEKUNLE OWOADE, J.C.A. : I have had the privilege of reading in draft the judgment just delivered by my Lord Shehu Abiriyi, JCA. I agree with the reasoning and conclusion.
I also allow the appeal and abide with the consequential orders. The key issue in this appeal is whether the trial Tribunal was right to have declared the Petitioners/Appellants’ petition as abandoned consequent on premature filing of the Appellants’ application for pre-hearing session when in fact the pre-hearing session took place and the Respondents participated therein.
The Respondents have argued that the petitioners’ application for pre-hearing session must neither be filed prematurely nor belatedly and that the absence of strict compliance with the provision of Paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended) renders a premature application for pre-hearing session incompetent and the petition deemed abandoned if no further application for pre-hearing session was made after the last of the Respondents must have filed a Reply
within time to the Petitioner’s Reply.
The Appellants on the other hand argued that premature application for pre-hearing session rather than belated application for pre-hearing session could not be fatal to the life of the petition. That, in any event, where as in the instant case, the Respondents have taken steps and participated in the ensuing pre-session, the Respondents have thereby waived their right to pre-session trial and could no longer complain by virtue of the waiver provision contained in Paragraph 53(2) of the First Schedule to the Electoral Act 2010 (as amended). In the instant appeal, I do agree with the Appellants. I also think justice and fairness require that when the Tribunal raised the issue of non-compliance with the provision of Paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended) suo motu, it ought also to consider whether the totality of the steps taken in the proceedings by the Respondents who did not complain amounted to waiver of the said non-compliance under Paragraph 53(2) of the First Schedule to the Electoral Act.
?Indeed, I have no doubt that in the circumstances of this case, the Respondents acquiesced
to the irregular procedure adopted by the Petitioners/Appellants as to the premature filing of the application for pre-hearing session.
I do not think the fact that the non-compliance was not raised by any of the Respondents prevented the Tribunal from considering and applying the provision of Paragraph 53(2) of the First Schedule to show that the parties have taken steps after the said irregularity and the pre-hearing session had started before the Tribunal raised the issue suo motu.
See e.g Sa’eed v. Yakowa (2013) 7 NWLR (Pt.1352) 124.
The simple implication of the various dicta of the learned justices of the Supreme Court in the Sa’eed v. Yakowa case (Supra) is that all the provisions of the rules of the Tribunal must be read together in order to enhance justice. The saving provision for non-compliance in Paragraph 53 of the First Schedule are in no way inferior to other part of the rules.
For these and the fuller reasons contained in the judgment of my learned brother Shehu Abiriyi JCA, I also allow the appeal.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft the leading Judgment of my noble lord, Abiriyi, JCA and I agree that the appeal is
meritorious.
I allow same and abide by the consequential order made therein.
Appearances
Dr. Olatunji Abayomi Esq.,
Charles Titiloye Esq.,
Ayodele Adedipe Esq.,
Idowu Mafimisebi Esq., and
Kayode Adeola Esq. For the Appellant.
Dayo Akinlaja SAN, FCIArb.,
Adeoti Adejuyigbe (Mrs),
Yomi Akinfemiwa Esq.,
Olabanjo Ayenakin Esq.,
Amos Fajoju Esq.,
Ibukun Fasanmi Esq.,
John Daramola Esq. and
Ibitayo Owolabi Esq.
For the 1st Respondent
Aderemi Olatubora Esq.,
Chief Kunle Ijalana Esq.,
Oyewole Awofade Esq.,
Kehinde Aladedutire Esq.,
Olumide Ogunje Esq.,
Adelani Ajibade Esq.,
Olumide Ogidan Esq.,
Abiola Taiwo (Miss),
Adekunle Olowu Esq. and
Oluwamuyiwa Olugola Esq.
For the 2nd Respondent
Adamson Adeboro Esq.,
Femi Ekperobe Esq.,
Gbenga Adeosun Esq.,
Olusola Bankole (Mrs) and
Dapo Adejumo Esq. For the Respondent
For the 3rd and 4th Respondents
Appearances
Dr. Olatunji Abayomi Esq., Charles Titiloye Esq., Ayodele Adedipe Esq., Idowu Mafimisebi Esq., and Kayode Adeola Esq.For Appellant
AND
Dayo Akinlaja, SAN, FCIArb., Adeoti Adejuyigbe (Mrs), Yomi Akinfemiwa Esq., Olabanjo Ayenakin Esq., Amos Fajoju Esq., Ibukun Fasanmi Esq., John Daramola Esq. and Ibitayo Owolabi Esq. for the 1st Respondent
Aderemi Olatubora Esq., Chief Kunle Ijalana Esq., Oyewole Awofade Esq., Kehinde Aladedutire Esq., Olumide OgunjeEsq., Adelani Ajibade Esq., Olumide Ogidan Esq., Abiola Taiwo (Miss) Adekunle Olowu Esq. and Oluwamuyiwa Olugola Esq. for the 2nd Respondent.
Adamson Adeboro Esq., Femi Ekperobe Esq., Gbenga Adeosun Esq., Olusola Bankole (Mrs) and Dapo Adejumo Esq. for the 3rd and 4th RespondentsFor Respondent
