Haastrup Adewale Olatunji V. Gbede Aderemi Waheed & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

DELIVERED BY MODUPE FASANMI, J.C.A.

This is an appeal against the ruling and judgment of the National Assembly Election Tribunal sitting in Ibadan Oyo State of Nigeria delivered on the 4th of October, 2007 and 13th December, 2007 respectively.

The brief facts are that the Appellant contested the Ibadan North Federal Constituency election into the House of Representatives held on 28th April 07. The 1st Respondent was declared winner by the 2nd Respondent. The Appellant being dissatisfied with the declaration of the 1st Respondent as the winner of the election filed a petition at the National Assembly Election Tribunal sitting in Ibadan, Oyo State of Nigeria. The Election Tribunal concluded that the Petitioner had failed to prove his petition. It dismissed the petition and affirmed that the certificate from the Arabic and Islamic Training School that is Exhibit 1st RE7 shows that the 1st Respondent was educated up to the Senior Secondary School, the certificate being a testimonial of attendance.

The notice of appeal is at pages 227 to 235 of the record wherein the Appellant filed 17 grounds of appeal and distilled 5 issues for determination. The notice of appeal was filed on 3rd January 2008. 1st Respondent also cross-appealed against the judgment in the notice of appeal dated 2nd January, 2008 of pages 236-238 wherein he filed 3 grounds of appeal and distilled two issues for determination.

In accordance with the rules of Court, parties filed and exchanged briefs.

At the hearing of the appeal, learned Counsel to the parties identified their briefs as follows:

Appellants brief was filed 10th April, 2008. Appellant’s reply brief to the 1st Respondent was filed on 9/1/09 but deemed filed on 13/1/09 Appellant’s/Respondent’s brief to Cross Appellant’s brief was filed on 28/4/08 and Appellants Reply brief to 2nd – 5th Respondents was filed 30/1/09 but deemed filed on 3/3/09.

1st Respondent’s brief of argument was filed on 18/4/08, Cross Appellants brief was filed on 21/4/08 and Cross/Appellant’s reply brief to Appellant/Respondent’s brief was filed on 2/5/08.

2nd – 5th Respondents brief was filed on 29/4/08.

Learned Counsel to the 2nd – 5th Respondents informed the Court of the preliminary objection embedded in the brief which he sought the leave of the Court to argue. He submitted that the notice of the preliminary objection is given in para 3.00 of the brief at page 1. 2nd – 5th Respondents are questioning the competency of grounds 14, 15 16 & 17 of the appeal in the notice of appeal dated 3rd January, 2008 and the 5th issue for determination. Learned Counsel submitted that being an interlocutory appeal, there is need to obtain leave of this Court when the time has expired. An Appellant may combine interlocutory appeal with the substantive appeal.

Learned Counsel for the 2nd – 5th Respondents submitted that Section 25(2)(a) of the Court of Appeal Act Laws of the Federation of Nigeria, 1990 reads:

(2) The periods for the giving of Notice of Appeal or Notice of Application for leave are:

(a) In an appeal in a civil cause or matter fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.

He contended that the Appellant appealed against grant of the 1st Respondent’s application dated 25th September, 2007 to call additional witnesses by the lower tribunal or appealed against the lower Court’s ruling of 4th of Oct. 2007. Learned Counsel for the 2nd – 5thRespondents submitted that Appellant’s notice of Appeal was filed on 3rd Jan. 2008 more than two months after delivery of the said ruling without the leave of this Court. He submitted that there is no pending valid appeal against the said ruling delivered on 4/10/07 in view of the time the notice of appeal was filed. Learned Counsel referred to the cases of B.O.S.LE.C. VS. KACHALLA (2005) All. F.W.L.R Part 518 at 543 paras B-C, ADEBANJO VS. OGUN STATE SPORTS COUNCIL (2005) ALL F.W.L.R Part 279 page 1319 at 1333 paras E-G and Section 51 of the First Schedule to the Electoral Act 2006 which provides as follows: