Adeleke Jelili A. V. Orimidara Adesanya Adebomi & Ors (2009)

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MODUPE FASANMI, J.C.A.

This is an appeal against the judgment of the Election Tribunal in the Governorship and Legislative House Tribunal Holden at Ibadan delivered on the 5th of Dec. 2007 wherein the declaration and return of the Appellant was nullified on wrongful exclusion of the 1st & 2nd, Respondents from, the election conducted on the 14th of April, 2007 by the Independent National Electoral Commission (INEC) and consequently ordered a bye election to be conducted into Akinyele Constituency I of the Oyo State House of Assembly.

Briefly, the facts are that Adesanya Orimidara Adebomi and Alliance for Democracy who are the 1st and 2nd Respondents before this Court by a petition dated the 14th of May, 2007 challenged the declaration and return of the Appellant by the Independent National Electoral Commission based on valid nomination but wrongful exclusion of the 1st & 2nd Respondents from the election conducted on the 14th of April, 2007. It is the case of the 1st & 2nd Respondents that the 2nd Respondent (Alliance for Democracy) sponsored the 1st Respondent Adesanya Orimidara Adebomi for the election of 14/4/07 to the Akinyele Constituency I of Oyo State House of Assembly. Consequent upon the nomination and sponsorship of the 1st Respondent by the 2nd Respondent, the Independent National Electoral Commission included their names in the list of candidates for the general election of April 2007 to be conducted.

Subsequent to the inclusion of the names of the 1st Respondent in the list of cleared candidates, the Independent National Electoral Commission failed to put or endorse the logo of the 2nd Respondent on the ballot papers which were used for the election of 14/4/2007 and 21/4/2007 as released and certified by the Independent National Electoral Commission. The Certified True Copy of the list of nominated candidate as prepared by Independent National Electoral Commission was tendered as Exhibits PE2 and PE3.

The Appellant and 3rd & 5th Respondents denied that the 1st Respondent was a candidate at the election of 14/4/2007 and they pleaded a list of cleared candidates for the election of Akinyele Constituency 1.

Contrary to the pleadings, the Appellant and 3rd & 5th Respondents tendered a list for Akinyele Constituency II.

The Tribunal after evaluating the oral and documentary evidence placed before it found that the 1st & 2nd Respondents were validly nominated but unlawfully excluded from the election of 14/4/2007. The election and return of the Appellant were thereby nullified.

The Appellant being dissatisfied with the judgment of the Election Petition Tribunal appealed. He filed his notice of appeal on the 24th of Dec. 07 containing 13 grounds of appeal to which a sole issue was formulated. The notice of appeal is at pages 188-192 of the record of appeal.

Learned Counsel for the Appellant filed the Appellant’s brief of argument dated and filed on 21/4/08 while learned Counsel for the 1st & 2nd Respondent’s filed his brief of argument on the 28th of April, 08. Learned Counsel for the 3rd – 5th Respondents filed his brief of argument on the 28th of April, 08. The Appellant’s reply brief to the 1st & 2nd Respondents brief of argument was filed on the 5th of May, 08.

Learned Counsel for the 1st & 2nd Respondents informed the court that he had a preliminary objection on behalf of the 1st & 2nd Respondents which had already been embedded in the brief filed on 28th April 08. The preliminary objection is contained on page 2 paragraphs 3-3.2 of the brief. He adopted and relied on the argument on the preliminary objection in the brief. He submitted that the only issue raised by the Appellant did not relate to any of the 13 grounds of appeal. The consequence of this is that the issue will be struck out and the appeal dismissed. He referred to the issue will be struck out and the appeal dismissed. He referred to SHANU V. AFRIBANK NIG. PLC (2002) 17 N.W.L.R Part 795 page 185 at 225-227 and IBATOR V. BARAKURO (2007) 9 N.W.L.R Part 1040 page 475 at 503 paras B-E. He submitted that the issue was not formulated from the grounds of appeal

In response to the preliminary objection, the Appellant filed a reply brief at page 1 para 1.1 of the Appellant’s reply brief to 1st and 2nd Respondents brief of argument. Learned Counsel to the Appellant submitted that the 1st & 2nd Respondents ought to have filed a formal notice of objection pursuant to Order 10 rules 1-3 of the Court of Appeal Rules. She relied on LAGGA V. SARHUNA (2009) ALL F.W.L.R Part 455 pages 166-167 at 1660 paras A-D.

Learned Counsel submitted that the lone issue covered the 13 grounds of appeal and therefore does not affect the competency of the appeal. The lone issue is the stratum of the entire appeal. Learned Counsel to the Appellant urged the Court to discountenance the objection.

It is the law that issues for determination in an appeal must flow from or be predicated on the grounds of appeal filed by the Appellant challenging the decision of the lower Court. No party or Court is allowed to formulate any issue which is not related to the grounds of appeal. See the cases of NWOSU V. UDEAJA (1990) 1 N.W.L.R Part 99 at 514, OBASANJO V. YUSUF (2004) 9 N.W.L.R Part 877 at 144 and STATE V. OKOYE (2007) 16 N.W.L.R Part 1061 page 607 at 667 paras E-G.

In the instant appeal, I have gone through the 13 grounds of appeal at pages 188-192 of the record and I agree with the learned Counsel for the Appellant that the lone issue formulated by the Appellant is the stratum of the appeal. It is not the number of issues that matters but how relevant the issues are to the grounds of appeal. See the cases of ANIMASHAUN V. U.C.H. (1996) 10 N.W.L.R Part 476 at 65; OGUNDERE V. OGUNLOWO (1997) 6 N.W.L.R Part 509 at 360; ATANDA V. AJAYI (1988) 3 N.W.L.R Part 111 at 511 and MERCANTILE BANK OF NIGERIA PLC. V. NWOBODO (2000) 3 N.W.L.R Part 648 at 297. The Court held that the lone issue is not wide and it is supported by the grounds of appeal. The purpose of issues for determination is to enable the parties narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity. See IBIKUNLE V. LAWANI (2007) 3 N.W.L.R Part 1022 PAGE 580 at 590-591 paras H-H.