Oladipo Durosimi Etti V. Oluremi Tinubu & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED AMBI-USI DANJUMA, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the decision of the National and State Houses of Assembly Election Petitions Tribunal holden at Lagos, (Hereinafter referred to simply as the Election Petitions Tribunal). The appellant as petitioner had filled an election petition against the named respondents on 29th,April 2011 praying for the nullification of the election of the 1st respondent into the office/seat of the Senator, Lagos Central Senatorial District held on 9th April, 2011 and for fresh election to be held to include the petitioner who was validly nominated by his party, the Labour Party, but unlawfully excluded from the election ( see the election petition at page 1 of the record of Appeal)

The first respondent filed a 1st respondent’s notice of preliminary objection and a reply to the petition on 24th May, 2011, ( see pages 64-244 of the record) while the 2nd -4th respondents filed their 2nd -4th respondents’ notice of preliminary objection and reply to the petition on 7/6/2011 ( see page 245-266 of the record)

The petitioner filed his petitioner’s reply to first respondent’s reply on 31st May 2011, ( at page 267-272) and his petitioner’s reply to 2nd -4th respondent’s reply to the petition on 29/6/2011, ( page 273-277).

By a ruling dated 5/9/2011, (see page 347-379) the trial tribunal held that the prayer for setting aside the pre-hearing notice in the 1st respondent’s motion filed on 7/7/2011, had already been canvassed as ‘A’ in the 1st respondent’s motion of 11/6/2011, thus it would resolve the issue formulated in the 2nd motion along with issue ‘A’ in the 1st motion of 11/6/2011, which is a failure by the petitioner to apply for a pre-hearing despite receipt of the respondent’s reply ( at page 350 and 356). The tribunal had concluded that

“(1) Exhibit BBB, the letter written on 7th June 2011, by SG Salau , ESQ, counsel for the petitioner for issuance of pre-hearing notice in this petition is incompetent in Law and is hereby struck out.

(2) The entire pre-hearing sessions conducted on the basis of the aforesaid letter in this petition is null and void and is hereby set aside.

(3) The petition filed by the petitioner in this action constitutes an abuse of tribunal’s process and is hereby dismissed.

(4) The petitioner is hereby ordered to pay the first respondent the sum of N100,000.00 (One Hundred thousand naira) only for this failed petition.

(5) This election petition is accordingly determined and disposed” (at 379).

The ruling aforementioned was a consequence of the petition that had its trial commenced by a letter to the tribunal secretary whereby appellant’s counsel applied for the issuance of the pre-hearing form. The petitioner’s reply to the 1st respondent’s reply was served on the respective counsel to the respondents on 9/6/2011 (see affidavit of service at pp 227G and 277 H).

Based upon the said application, the secretary issued form TF 0007 titled “hearing notice for pre-hearing session” which was also paid for by the petitioner (see exhibit DE2 dated 10/6/2011, attached to the petitioner’s counter affidavit filed 12/7/2011).

When the suit came up in open court on 13/6/2011, counsel for the 1st respondent made an oral application for the dismissal of the petition for non-filling of petitioner’s reply to the 1st respondent’s reply and application for issuance of the pre-hearing notice. The said oral application was withdrawn upon petitioner’s counsel pointing out that he had filed the petitioner’s reply to 1st respondent’s reply and an application for issuance of the pre-hearing notice had been filed; and upon confirmation of same by the tribunal, the oral application was withdrawn, upon which the tribunal delivered the ruling discountenancing the application (see page 307 )

The 1st respondent had filed a notice on 11/6/2011 seeking an order dismissing or striking out the petition for being incompetent and /or vesting no jurisdiction in the tribunal to adjudicate on it.