Aanena Elizabeth Jemitola V. Col. Akogun Tunde (Rtd.) & Ors. (2009)

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NWOSU-IHEME (Ph.D), J.C.A.

These consolidated appeals arose from the decision of the Edo State Governorship and Legislative houses Elections Petitions Tribunal NO.2. Election into the House of Representatives of the National Assembly of the Federal Republic of Nigeria held on 21st April, 2007.

The appellant herein Colonel Tunde Akogun (rtd.) was the candidate of the Peoples Democratic Party (PDP) for the Akoko-Edo Constituency of the Federal House of representatives at the aforesaid election. The 1st Respondent herein Aanena Elizabeth Jemitola was the candidate of the All Nigeria Peoples Party (ANPP).

After the election, the 2nd Respondent (INEC) declared the appellant as the duly returned and elected candidate of the Akoko-Edo Federal Constituency. The 1st Respondent was aggrieved by the declaration and return of the appellant. Hence she filed petition No. EDNA/EPT/8/07 to challenge the result of the election. Issues were duly joined by the parties to the petition and the matter went to trial. At the end of the trial the Tribunal held inter alia:-

“That the purported election and return of the 1st Respondent Col. Akogun Babatunde as a member representing Akoko-Edo Federal Constituency be and is hereby nullified on the ground that he was not duly elected by the majority of lawful votes cast. ”

See page 785 of the record of appeal.

The Appellant was dissatisfied with the decision of the Tribunal No.2 and therefore filed this appeal. The 2nd Respondent (INEC) was also dissatisfied with the nullification of the election. It also appealed the decision. Added to these 2 appeals, the 1st Respondent Cross Appealed against some of the findings of the lower Court.

In due course respective parties filed their respective briefs of argument. However before the appeals went to full hearing, learned Counsel to the Appellant, Dr. Izinyon SAN filed a motion on notice on 30th January, 2009, the motion sought for the following reliefs:-

1. AN ORDER granting leave to the Appellant/Applicant to amend the Notice of Appeal filed before this honourable Court by including an additional ground of appeal namely ground is as shown on the document attached hereto and marked as Exhibit ‘B’.
2. AN ORDER deeming the Amended Notice of Appeal attached hereto as Exhibit ‘C’ as properly filed and served, the requisite fees having been paid.
3. AN ORDER granting leave to the Appellant/Applicant to raise and argue fresh issue flowing from the said additional ground 15 of the Amended Notice of Appeal.
4. AN ORDER granting leave to the Appellant/Applicant to amend their Brief of Argument incorporating the issue flowing from the additional ground 15 of the Amended Notice of Appeal.
5. AN ORDER deeming as properly filed and served the Appellant/Applicant’s Amended Brief of Argument attached hereto and marked as Exhibit ‘D’, the requisite fees having been paid.

The grounds for these reliefs were also set out on the face of the motion paper. They are as follows:-

1. The Notice of Appeal in this appeal dated 15th May, 2008 was duly filed before the trial tribunal.
2. Appellant/Applicant’s Counsel inadvertently omitted to include the proposed ground of appeal in the Notice of Appeal and consequently, also omitted to address same in the Appellant’s Brief of Argument earlier filed before the Honourable Court.
3. The issue of law raised in the additional ground 15 is a fresh issue of law in which the leave of this Honourable Court is required to raise and argue same.
4. The said proposed additional ground of appeal is fundamental and raises a jurisdictional issue that will determine the appeal one way or the other.
5. No fresh evidence is required to deal with the said issue in the proposed additional ground of appeal as all facts relating to the issue are contained in the record before this Honourable court.
6. Leave of this honourable Court is required to amend the Appellant/Applicant’s Notice of Appeal, Appellant/Applicant’s Brief of Argument and to raise and argue the fresh issue flowing from the said additional ground of appeal.
7. The interest of justice would be best served by the grant of this application as same seeks to bring before the honourable court all the issues in contention.
8. The respondents will not be prejudiced by the grant of this application.

This Court considered this application and when there were no objections from any of the Counsel to the Respondents saw good reason to grant it as prayed. In consequence of granting this application, the previous briefs settled and filed by respective learned Counsel were abandoned and fresh briefs were filed. At the hearing of the appeal on 25th February 2009, respectively learned Counsel identified their briefs. Thereafter each Counsel in turn adopted and relied on their briefs in this appeal. While each of the appellants urged this Court to allow their appeal and dismiss the cross appeal, the 1st Respondent/Cross Appellant urged the Court to dismiss the appeals and allow the cross appeal. But before doing that respective learned Counsel had taken turns to address the Court on some of the high points in the appeals.

At this stage it is relevant to point out that ground 15 of the amended notice of appeal of the Appellant, which was brought in with leave of this Court, complained of want of jurisdiction and competence of the lower Court to entertain petition NO.EDNA/EPT/8/07. This ground and its particulars are hereby set out as follows:-

GROUND 15:

The learned chairman and members of the tribunal erred in law as they lacked jurisdiction to hear and determine the petition of the 1st Respondent which was incompetent

PARTICULARS OF ERROR