Ekun Adebayo Yusuff V. Independent National Electoral Commission & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment)

This is an appeal by the Appellant who was the Petitioner at the Governorship/National Assembly and Legislative House Election Petition Tribunal, Ogun State, sitting at Abeokuta in Petition No.EPT/OG/HA/18/2001 against the judgment of the Tribunal Coram:- Honourable Justices H. M. Tsammani, B. H. Ismail, C. U. Ukpe, U. M. Sadiq and C. O. Onyeabo, delivered on the 31st day of October, 2001 whereupon the Tribunal upheld the preliminary objection of the 1st, 2nd, 4th and 11th Respondents and that of the 3rd and 11th Respondent respectively. In consequence, the Tribunal struck out the petition of the Appellant as being incompetent.

The facts leading up to this appeal are briefly set out as follows The Elections were conducted into the Ogun State House of Assembly on the 14th April, 2007. The Appellant was a candidate who contested the seat for Ifo Local Government Constituency. At the conclusion of the election, the 1st, 2nd, 4th – 10th Respondents declared the 3rd Respondent who was the candidate of the Peoples Democratic Party (P.D.P.) as the winner. The Appellant was dissatisfied with the outcome of the election and filed a petition dated the 11th day of May, 2007 before the Tribunal, seeking the nullification of the said election for substantial non-compliance with the provisions of the Electoral Act. The Petitioner further pleads that, he contested the election, and has the right to be returned having been duly elected.

The Appellant filed a Notice of Appeal dated 19th of November, 2007 containing Nine (9) Grounds of Appeal from which the learned Counsel formulated Nine (9) Issues for determination in this appeal. Learned Counsel to 1st/2nd, 4th – 10th Respondents in their Brief of Argument dated 27th January, 2010 filed on the 28th January 2010, formulated Three (3) Issues for determination. Also, the learned Counsel to 3rd and 11th Respondents in their Brief of Argument dated 28th of March, 2008 filed same day, incorporated a Notice of preliminary objection and formulated Three (3) Issues for determination.

When this appeal came up for hearing on the 16th of March, 2010, the learned Counsel to the 3rd and 11th Respondents, A. F. Ogunlesi (Miss), drew the attention of the Court to the Notice of preliminary objection filed and dated 27th of January, 2010, and which argument is incorporated into the Brief of Argument of the 3rd and 11th Respondents.

NOTICE OF PRELIMINARY OBJECTION:

TAKE NOTICE that the 3rd and 11th Respondents herein intend at the hearing of this appeal to rely upon the following preliminary objection notice whereof is hereby given to you to seek:-

an Order of this Honourable Court striking out Grounds 1 and 2 of the Appellant’s Notice of Appeal and Issue One (1) in the Appellant’s Brief of Argument.

AND TAKE FURTHER NOTICE that the Grounds of the said objection are as follows:-

(1) That Grounds 1 and 2 purport to challenge a decision on priority of applications which does not arise for the ruling of the Tribunal given on the 31st of October, 2007.

(2) That Issue One (1) in the Appellant’s Brief of Argument is based on the said Grounds 1 and 2 which are incompetent.

The Notice of preliminary objection of the 3rd and 11th Respondents was brought pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2007. In arguing the said grounds of the objection as contained at Page 3 thereto, the learned Counsel submitted that, the decision of the Tribunal which was given on the 31st day of October, 2007, did not in anyway, relate to the question of priority of application and neither did the Tribunal make a decision on the subject matter of the Appellant’s application challenging the validity of the 3rd and 11th Respondent’s Reply. In the circumstances, I submit that Grounds 1 and 2 of the said Notice of Appeal is incompetent to the extent that the Appellant makes complaints against the validity.

Having not appealed on the issue of priority, I submit that Issue One (1) in the Appellant’s Brief of Argument is incompetent and should be struck out. In arguing Issue One (1), the Appellant proceeds to make submissions as to the validity or otherwise of the 3rd and 11th Respondent’s Reply. I submit that the Tribunal did not make any decision on the issue as to the competence or otherwise of the Respondent’s Reply and that the argument of Issue One (1) in the Petitioner’s Brief of Argument is incompetent and should be struck out. The Appellant on his own part did not file a Reply to this Notice of preliminary objection.

I have carefully considered the Notice of preliminary objection raised by the 3rd and 11th Respondents. It is settled law that, where there is conflict of motions, as the case in this appeal, it is within the discretionary powers of the Tribunal or Court as the case may be, to decide which of the two conflicting motions to take first. It is the practice of Courts to take first, the one that may save the case, or the appeal, before considering the one that may terminate it.