Labour Party V. Yahaya Bello & Ors (2016)

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ITA G. MBABA, J.C.A.

This is an appeal against the Ruling of the Kogi State Governorship Election Petition Tribunal, delivered on the 9th day of March 2016, wherein the Tribunal dismissed the petition filed by the Appellant, who was the petitioner, against the 3rd Respondent (INEC) on the ground that Appellant did not file application for pre-hearing session of the petition separately and independently before the final close of pleadings between the parties. The appeal is also against the decision of the said Tribunal on the main petition, delivered on 8th June, 2016, whereof Appellant, as petitioner, had challenged the return of the 1st Respondent (Yahaya Bello) as the winner of the election conducted by the 3rd Respondent on 21st November, 2015 and 5th December, 2015 to the office of the Governor of Kogi State, notwithstanding (according to Appellant) that he (1st Respondent) did not participate in all the elections and in all stages of the elections.

The facts of the case at the Lower Tribunal revealed that the 3rd Respondent (INEC) conducted election to the office of Governor of Kogi State. Appellant, being a Registered Political Party in Nigeria, sponsored a candidate (Mr. Philip Omeiza Salawu) to contest the election on 21/11/2015 and 5/12/2015. The 1st Respondent who was sponsored by the 2nd Respondent in the election was declared winner of the election by the 3rd Respondent. Dissatisfied Appellant, as petitioner, filed petition No. EPT/KG/GOV.O4/2015 at the lower Tribunal in Kogi State (which petition was later transferred to Abuja for hearing and determination.

Upon the filing of the Petition on 24/12/2015, the 3rd Respondent was served with the petition on 29th December, 2015 and it filed a Reply on 14th January, 2016 and served same on Appellant on 15th January, 2016. The 2nd Respondent was served with the Petition on 04/01/2016 and it filed a Reply on 23/01/2016 and served Appellant with same on 25/01/2016, thereafter, on 29/01/2016. Appellant filed his reply on 29/01/2016. The 1st Respondent was served with the petition by substituted means, that is by pasting, on 26/01/2016 and he filed a Reply on 01/02/2016 and served same on Appellant on 02/02/2016. Appellant filed a Reply to 1st Respondents Reply on 05/02/2016, which was the last Reply filed by the Appellant at the Lower Tribunal and it immediately filed an application for pre-hearing session on the 05/02/2016 and served it on the parties.

Upon the filing and service of the Appellant€™s Reply to the 2nd Respondent on 29/01/2016. Appellant had, on 31/01/2016, filed an application for pre-hearing session and served all the parties. The last competent Reply of Appellant was served on the 1st to 3rd Respondents on the 8th of February, 2016 and upon this final service of the last Reply on the 1st to 3rd Respondents, Appellant having closed the final pleading, applied for the pre-hearing session. See pages 815 -818 of the Records. And upon the application to set down the petition for pre-hearing session between Appellant and the 1st to 3rd Respondents, the 3rd Respondent (INEC), claimed that the petition was separate as per the parties; that Appellant should have brought pre-hearing application against INEC (3rd Respondent), separately and independently, before the final close of pleading between the 1st €“ 3rd Respondents. It, thereafter, filed a motion on 15/02/2016 seeking dismissal of the petition for incompetence. Appellant filed a counter-affidavit and a written address on 20/02/2016 to oppose the said motion.

On 09/03/2016, the various preliminary objections, by the Respondents came up for hearing, during the pre-hearing session. After hearing the said motions, including that of 3rd Respondent, which sought the dismissal of the petition, for failure to comply with paragraph 18(1) of the 1st Schedule to the Electoral Act, as amended, the Tribunal reserved ruling in respect of motions filed on 26/02/2016, 09/02/2016 and 22/02/2016 respectively, opting to deliver same alongside the judgment in the main petition. See page 1006 of the Records (Volume II).

The Tribunal, thereafter, went on to resolve the 3rd Respondent€™s motion, filed on 15/02/2016 against the Appellant. It held on page 1014 €“ 16:

€œ€¦. Where there are several respondents as in the instant petition, the petitioner is obliged to filed (sic) separate application for pre-hearing notice in respect of each respondent at the close of its pleadings with the respective respondents. See the cases of Oseke & Anor Vs INEC & others (2011) LPELR CA/PH/EPT/25/2011, MR. UCHENNA MBAM NSHI Vs HON. SYLVESTER OGBAGA & 2 ORS CA/E/EPT/09/ 2015 of 15/09/2015 €¦.. it is elementary to state that INEC is a necessary party to any election petition and therefore a respondent €¦ the inevitable conclusion which this tribunal reaches in the instant application is that the failure of the petitioner to file an application for pre-hearing notice in respect of the 3rd Respondent is fatal to his case against the 3rd Respondent.Consequently, the tribunal finds and holds that this petition is deemed abandoned against the 3rd respondent€.

The above ruling was also delivered on 09/03/2016 when the tribunal also refused Appellants application, filed on 08/02/2016, for an order extending the time within which to file witness statement on oath of three of its witnesses, in reply to the 1st respondent€™s new issues, raised in its reply to the petition.

On 10/03/2016, Appellant appealed against the said Ruling of the Tribunal delivered on 09/03/2016 (pages 1025 to 1034 of the Records). But on 05/05/2016 the said appeal was struck out by this court, and Appellant, in his brief, says that this court, in a full panel, directed and advised Appellant to incorporate the interlocutory decision/ruling of the lower tribunal with the main appeal; that in compliance with that directive, it filed grounds 1 to 4 of the grounds of appeal, herein, together with the appeal against the judgment of 08/06/2016 in the main petition.

The decision of the lower tribunal delivered on 08/06/2016 (in the main petition) was also against the Appellant. As the Tribunal said:

€œIn the light of our painstaking analysis of the facts and circumstances of this petition, we come to the conclusion that the petition has failed in its intent. It is not competent either in itself or by the Labour Party that filed it without locus standi. One would have thought that the Labour Party would have fore borne to file the petition. For one thing, it performed miserably in the election in view. The fact that its flag bearer resiled from lending his dignity to its agitation in this petition is a minus. The petition has not prayed for its flag bearer to be declared winner or elected in the stead of 1st Respondent herein. And when the Chairman of the party PW1 in answer to cross examination by Counsel to 1st Respondent said:

€œI have no document to show that Chief Salau Omeiza Philips has expressed intention to participate in a re-run election if ordered€ one equally wonders to what end this petition has clamoured for a fresh election to be ordered by this tribunal. In the same vein, all the points raised by respective Respondents on their preliminary objection are upheld, save for their insistence that this tribunal must hear and determine their preliminary objections without recourse to trial of the petition on the merits

The arguments of counsel to the petitioner against those objection are accordingly dismissed for lacking in merit€¦. Consequently, none of the reliefs prayed for in the petition is probable. They are accordingly dismissed€. (See pages 1327 €“ 1328 of the Records).