Action Congress Of Nigeria & Anor. V. Prince Bamigbade Adekola Peter & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A (Delivering the Leading Judgment)

On 17th November, 2011, I dismissed this appeal and pursuant to section 9(8) of the second Alteration No.2 of 2010 of the 1999 Constitution of the Federal Republic of Nigeria, (as amended), and reserved the reasons therefore to a future date. The said reasons are hereby given:

The 1st and 2nd Respondents had filed a petition at the Ekiti State National and State House of Assembly Elections Petition Tribunal, sitting at Ado-Ekiti, whereby they complained of the unlawful exclusion of the 1st Respondent who had been validly nominated to contest election into the office of Member, House of Representatives, representing Ekiti Central Federal Constituency of Ekiti State.

And that the election in respect of the Ekit i Central II Federal Constituency held on 26th April, 2011 and which produced the 2nd Appellant as the winner was invalid and vitiated by reason of the unlawful exclusion of the petitioners/1st and 2nd Respondents from participating in the said election.

The 1st and 2nd Appellants in their Reply to the petition averred that the 2nd Appellant was duly elected as the member, House of Representatives representing Ijero Ekiti West/Efon Federal Constituency on 26th April, 2011 and the 1st and 2nd Appellants never participated in any election in respect of a non-existing Ekiti Central II Federal Constituency of Ekiti State on 26th April, 2011.

Furthermore, the 3rd and 4th Respondents averred that there was no record with them that “the 2nd petitioner never conducted in (sic) primary election wherein the 1st petitioner emerged as the candidate of 2nd respondent’s party” because neither the 3rd and 4th respondents nor any of their officials were invited to witness any. At the close of pleadings, a pre-hearing session was conducted. Thereafter, the petition proceeded to hearing and at the end thereof, the lower tribunal entered judgment for the petitioners/1st and 2nd respondents and nullified the election of the 2nd Appellant. It also ordered that within 90 days, a fresh election must be conducted by the 3rd Respondent and that the 1st and 2nd Petitioners must be participants at the re-run election for the member of House of Representatives representing Ijero/Ekiti West/Efon Federal Constituency of Ekiti State.

It is against the decision of the lower tribunal that the 3rd and 4th respondents at the lower tribunal appealed to this court. They are the 1st and 2nd appellants herein. The notice and grounds of appeal is dated 10th October, 2011. The 1st and 2nd Respondents at the trial, also filed a Notice of Cross-appeal dated 10th October, 2011 as the 3rd and 4th respondents/Cross-appellants herein.

The appellants filed their brief of argument on 24th October, 2011 wherein, four issues were identified for determination as follows:-

1. “Whether or not the Lower Tribunal was right in overruling the Preliminary Objection of the Appellants on the issue of locus standi and other sundry and far reaching objections raised before it?”
2. Whether the proceedings in this Petition has not been fundamentally violated by the failure of the petition to bring a proper application for prehearing in accordance with paragraphs 18(1) and 47(11 of the 1st schedule to the Electoral Act and having regards to such defect, whether the Tribunal had not been robbed of jurisdiction to adjudicate over the petition?
3. Whether or not the issues canvassed before the Lower Tribunal are pre-election matters?
4. Whether having regard to the totality of the evidence and circumstances of this case, the lower tribunal was not wrong to have nullified the election and or return of appellants.”

The 1st and 2nd appellants also filed a Reply Brief of Argument on 3rd November, 2011 and at the hearing of the appeal, both the main brief of argument and the Reply Brief of Argument were each adopted and relied upon by Niyi Idowu, Esq., of counsel as his submissions on the appeal.

The 1st and 2nd Respondents filed their Brief of Argument on 28th October, 2011. Three issues were identified at paragraph 4.02 of the brief of argument for determination, to wit:

“1. Whether the Tribunal was right to have held the nomination of the 1st Petitioner valid in view of the evidence before it.

2. Whether the Tribunal was right to have held that the Petitioners were unlawfully excluded from the election held on 26th April, 2006 into the House of Representatives seat in Ekiti Central Federal Constituency II comprising Ijero/Ekiti West/Efon LGAs.
3. Whether the Tribunal was right to have nullified the return of the 2nd Appellant/Cross Respondent and ordered a fresh election that will include the Petitioners on the ground of their unlawful exclusion having regard to the circumstances of this case. ”

At the hearing of the appeal, the same was adopted and relied upon by Mr. Obafemi Adewale. On their part, the 3rd and 4th Respondents/Cross-appellants filed their own briefs of argument on 24th October, 2011 and they at paragraph 4.01 thereof, identified two issues for determination as follows:

“ISSUE 1

Whether the lower tribunal was right in holding that the issue of whether the 1st Respondent was validly nominated as raised by them i.e. the 1st and 2nd Respondents and denied by cross-appellants was a pre-election matter and therefore a “no go area for the Election Petition Tribunal.”