Awopetu Paul Oludare & Anor V. Mrs. Atinuke Florence Akinwale & Ors (2009)

LawGlobal-Hub Lead Judgment Report

JUMMAI HANNATU SANKEY, J.C.A.

The Appellants were Petitioners before the Election Petitions Tribunal Panel II Ado-Ekiti. In the Petition, the Petitioners, (now Appellants), challenged the 1st -Respondent’s election into the Ekiti South Federal Constituency II of Ekiti State at the National Assembly in the election held on the 21st April, 2007 on the ground that the election was invalid by reason of corrupt practices and/or substantial non-compliance with the provisions of the Electoral Act, 2006 and its guidelines. The 1st and 2nd Respondents, as well as the 3rd to 8th Respondents in their separate replies, denied the two grounds upon which the Petition is based and asserted that there were no corrupt practices and/or substantial non-compliance with the provisions of the Electoral Act.

Following the filing of the Petition, hearing commenced before the Election Tribunal Panel I at Ado-Ekiti. While the Petition was still part-heard, another Election Tribunal Panel II was set up by the President of the Court of Appeal, and the Appellants’ Petition, along with nine others, was assigned to it for hearing de novo. The Appellants, not being content with this re-assignment, protested against it at several fora, both administrative and judicial. In this regard, a letter of complaint was written to the said Tribunal II requesting it to send the Petition back to the Election Tribunal Panel I for hearing. This letter was forwarded to the President of the Court of Appeal by the lower Tribunal. When the letter did not yield the desired result, an Originating Summons was filed before the Federal High Court, Akure, (which suit was subsequently transferred to the Federal High Court, Ado-Ekiti), challenging the action of the President of the Court of Appeal in so transferring the Petition. It is well to note that neither the Respondents to this Petition nor the Tribunal itself were named as parties to that suit. On the basis of the suit at the Federal High Court, the Appellants sought a stay of proceedings at the Election Tribunal II pending its determination. The application for stay was predictably refused on the 12th May, 2008 prompting the Appellants to file an Appeal against the refusal before this Court on the 20th May, 2008. In the same vein, the applicants filed another application for stay of proceedings of the Tribunal before the Court of Appeal. On 9th June, 2008, the Appellants, yet again, filed another application for stay of proceedings before the Tribunal II, pending the determination of the application for stay of proceedings filed at the Court of Appeal. This application was heard on the 10th June, 2008 and the Tribunal once again refused to grant a stay. Following the dismissal of the application, the Tribunal called upon the Appellants to proceed with the hearing of the Petition, the matter having been slated for hearing on that date at the instance of the Petitioners even before the filing of this latter-day application. When Counsel for the Petitioners declined to proceed to prove their Petition, insisting instead that doing so would compromise the determination of the application for stay of proceedings pending at the Court of Appeal, the lower Tribunal proceeded to strike out the Petition for want of prosecution. The Tribunal found inter alia thus at page 130 of the record of the lower Tribunal:

“As we earlier on observe, the petition was adjourned at the instance of the Petitioner till today for definite hearing. Having heard this application and determined the application for stay by the Petitioner and refusing the order sought, it is our firm conclusion that the petition still stand (sic) on the courts (sic) list for hearing… In the light of his inability to proceed to hearing based on the reason advance, we are left with no other option than to acceed (sic) to the call by the learned Counsel to the 1st and 2nd Respondent (sic) and invoke the provision of paragraph 5 (3) of the Election Tribunal and Practice Direction 2007 as amended We have noted the information lately given by the counsel to the Petitioner that their application has been fixed for 16th and 18th of June, 2008 at the Court of Appeal and which information he said he got by telephone message while in Court. In our view that situation does not change the position of things.

What the Tribunal is saying and of the firm view, is that in view of its ruling on the application by Petitioner for stay refusing same the Petitioner should proceed to hearing and call his witnesses. That is to say the hearing of the Petition can progress while he is pursuing the order for stay of proceeding in (sic) Court of Appeal. Having refused, the situation remains the same. To that end the petition is hereby struck out for want of prosecution. ”

Dissatisfied with the decision of the Tribunal, the Petitioners appealed to this Court on four grounds as set out in the Notice of Appeal. The Appellants’ Brief of argument and Reply brief were filed on 25th August, 2008 and 18th November, 2008 respectively. While the 1st and 2nd Respondents’ Brief of argument was filed 30th October, 2008. The 3rd to 8th Respondents’ Brief of argument was filed on 5th November, 2008. When the Appeal was called up for hearing, Chief Adeniyi adopted and relied on the Appellants’ two briefs as the Appellants’ arguments in this Appeal. Mr. Toki and Mrs. Arinze, learned Counsel for the 1st and 2nd Respondents and learned Counsel for the 3rd to 8th Respondents respectively, also adopted and placed reliance on their particular Respondents’ Briefs. Chief Adeniyi urged the Court to allow the Appeal, while Mr. Toki and Mrs. Arinze prayed the Court to dismiss same.

The 1st and 2nd Respondents, in their joint Brief of argument, raised a preliminary objection to the competence of the Appeal itself before the Court. The Notice of Preliminary Objection prays thus:

1. An Order of Court striking out Ground 1 of the Grounds of Appeal contained in the Appellants’ Notice and Grounds of Appeal dated 19th May, 2008 (filed on 20th May, 2008) for lack of competence.
2. An Order of Court striking-out Grounds 1, 2, 3 and 4 of the Grounds of Appeal dated and filed on the 27 day of June, 2008 for lack of competence.

The grounds for the application are stated thus:

(a) The Appellants’ Notice of Appeal dated 19th May, 2008 (filed on 20th May, 2008) is an Appeal against a non-existing Ruling/Decision of the Tribunal.

(b) Ground 1 of the Grounds of Appeal contained in the Appellants’ Notice and Grounds of Appeal dated 19th May, 2008 (filed on 20th May, 2008) and Ground 1 of the Notice and Grounds of Appeal of 27th day of June, 2008 are Grounds of Appeal purported to have been against an interlocutory decision of the lower Tribunal.

(c) Leave of either the lower Tribunal or of the Court of Appeal ought to be first sought and had before Ground 1 of each of the two Appeals could have been properly filed and competent.

(d) Leave of Court having not been obtained before filing of Ground 1 of the Grounds of Appeal contained in the Appellants’ Notice of Appeal dated 19th May, 2008 (filed on 20th May, 2008) and Grounds 1, 2, 3 and 4 of the Notice of Appeal dated and filed on 27th day of June, 2008, constitute a breach of the provisions of Section 14 (1) of the Court of Appeal Act, 2004 and is thus incompetent and ought to be struck out.

(e) The Appellants’ Notice of Appeal dated and filed on 27th day of June, 2008 is against the exercise of discretion of the lower Tribunal (to grant or refuse applications for stay of proceedings and/or adjournment) for which leave was neither sought nor obtained by the Appellants before filing same.

(f) ……………………..