Labour Party (LP) v. Elumelu Ndudi Godwin & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUHAMMED LAWAL SHUAIBU, JCA (Delivering the leading judgment)

This is an appeal against the judgment of National and State Houses of Assembly Election Tribunal Asaba, Delta State delivered on 24th July, 2023, adjudging the petition of the 1st and 2nd respondents meritorious and granting their reliefs sought therein.

On the 25th of February, 2023, the 3rd respondent (INEC) conducted the election to elect the member to represent Aniocha/Oshimili Federal Constituency in the House of Representatives of the National Assembly in which the 4th respondent contested on the platform of the appellant while the 1st respondent contested the said election under the platform of the 2nd respondent. At the end of the election, the appellant was declared the winner and returned as elected.

Being dissatisfied, the 1st respondent and his party, 2nd respondent as the runner up at the election filed a petition to challenge the declaration and return of the 4th respondent as the elected candidate before the lower tribunal on the grounds inter alia that the 4th respondent was at the time of the election not qualified to contest the election.

At the trial, all the parties except the 3rd respondent called witnesses and tendered several documents, thereafter counsels filed and adopted their respective final addresses. In a reserved but considered judgment delivered on 24th July, 2023, the tribunal entered judgment in favor of the 1st and 2nd respondents who were the petitioners therein.

It is against the judgment of the lower tribunal that the appellant filed the instant appeal on the 3rd of August, 2023 contained at pages 1559 – 1588 of the record of appeal. Distilled from the said grounds of appeal, appellant formulated the following four issues for determination by this court:

1. Whether the honorable tribunal had the jurisdiction to hear and determine the subject matter of the petition.
2. Whether the learned Justices of the lower tribunal were correct to have held that the nomination and sponsorship of the appellant was invalid by dint of his alleged failure to resign his political appointment thirty (30) days before the election.
3. Whether the lower tribunal was correct to have granted the petitioners reliefs despite their admissions and failure to establish by credible evidence and on preponderance of evidence that the appellant was not nominated/sponsored by the 4th respondent?
4. Whether the learned trial tribunal properly evaluated both the admissible oral and documentary evidence adduced before it to arrive at its judgment delivered on 24th July, 2023.

Learned counsel to the 1st and 2nd respondents formulated three issues for the determination of the appeal as follows:

1. Whether the honorable tribunal had the jurisdiction to hear and determine the subject matter of the petition.
2. Whether the learned trial tribunal properly evaluated both the admissible oral and documentary evidence adduced before it to arrive at its judgment delivered on 24th July, 2023.
3. Whether the honorable judges and member of the election tribunal correctly determined that the appellant did not hold any primary election whereas the 4th respondent was nominated as its candidate thus rendering his sponsorship, invalid.

In addition, the 1st and 2nd respondents filed a notice of preliminary objection on 21/2/2023 challenging the competence of the appeal, inclusive of the appellant’s brief. The grounds of the objection are as follows:

1. The font type used for the preparation of the appellant’s brief was not 14 font size and is thus invalid based on paragraph 5(c) and (d) of the Election Judicial Proceedings Practice Directions, 2023.
2. The grounds of appeal are prolix, argumentative and full of narrative contrary to the express provisions of the Court of Appeal Rules, 2021.
3. The complaints in the grounds of appeal was vague, not capable of being understood or tied to the judgment delivered by the honorable tribunal or are too wide, speculative and hypothetical.
4. Grounds 1, 2, 3, 4, 5, 6, 7, 8, 8, 10, 11, 12, 13, 14, and 15 of the notice of appeal do not complain against any specific finding of the tribunal but are mere opinions to what the issue set out for determination should be.
5. All the grounds of appeal though characterized as being either grounds of law or grounds of fact each combine both error, law and misdirection of fact or are grounds of law and fact in each of the 15 grounds of appeal without any particularization.
6. There are no particulars of appeal for any of the grounds of appeal in violation of the applicable law.
7. Ground 16 which purports to be an omnibus ground of appeal is dilatory and cannot be used to raise any issue of law or error in law.
8. All the 16 grounds of appeal are consequently incompetent and liable to be struck out with the issues distilled therefrom.

On the part of the 3rd respondent three issues were formulated thus:

1. Whether the honorable tribunal had jurisdiction to hear and determine the subject matter of the petition.
2. Whether the lower tribunal was right when it held that the 1st and 2nd respondents had from the evidence led made out a prima facie case that the appellant did not conduct any primary election that produced 4th respondent as a candidate and therefore granted the reliefs sought in the petition?
3. Whether the lower tribunal properly evaluated the totality of evidence adduced by both appellant and respondents before coming to its conclusion in the judgment?

Learned counsel for the 4th respondent withdrew the 4th respondent’s brief at the date of hearing of the appeal.

I have carefully and meticulously perused the record as well as the various formulations above but same are seemingly the same except that the issues formulated by the 1st and 2nd respondents are preferred by me for being apt and concise. I will therefore utilize the three issues of the 1st and 2nd respondents in determining this appeal. Whereas in the instant case, a respondent filed a preliminary objection to an appeal, the usual practice always is to determine the preliminary objection first so as to know what line of action next, the court shall adopt. In fidelity to that practice, I will first of all determine the 1st and 2nd respondents’ preliminary objection.

Proffering argument in support of the preliminary objection, learned counsel for the 1st and 2nd respondents contended that the appellant’s brief violates the provisions of paragraph 5(c) of the Election Judicial Proceedings Practice Direction, 2023 for not using font size in the appellant’s brief of argument and also that same is not Arial, Times New Roman or Tahoma. He submitted that the word used is “shall” which connotes mandatoriness and urged the court to invoke paragraph (5)(d) of the said practice direction, for being invalid.

Counsel referred to order 7 rules 2(3) and 3 of the Court of Appeal Rules, 2021 to submit that neither a ground of appeal nor the particulars in support should contain any argument or narrative. And that grounds 1 – 15 of the appellant’s notice of appeal are prolix, narrative and argumentative and none complain about any finding of the lower tribunal. He referred to S. G. B. N. Ltd. v. Eleganza & Ind. Ltd. (2004) 8 NWLR (Pt. 875) 432 at 442 and Ikem v. Ezianya (2002) 4 NWLR (Pt. 757) 245 at 261 to the effect that a ground of appeal is incompetent when the factual basis of same is false or non-existent and it does not matter whether such ground of appeal is a ground of law, fact or mixed law and fact.

He contended further that the appellant failed to particularize the error in law or misdirection and also combined errors of law and factual questions. Counsel thus submitted that it is not permissible to combine a complaint of error in law with a complaint of error in fact in a ground of appeal, relying on Adebesin v. State (2016) 20 WRN 46; (2014) 10 NWLR (Pt. 1413) 609.