Adeleke Apapa & Anor V. Independent National Electoral Commission & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA J.C.A. (Delivering the Leading Judgment)

This Appeal was allowed on the 4th day of November, 2011 and reasons for allowing the appeal was reserved until today, pursuant to S. 285 (8) of the constitution of the Federal Republic of Nigeria 1999 (as amended). I now give my reasons.

This is an appeal, against the Ruling of the National and State Houses of Assembly Election Petition Tribunal Holden at Ibadan, Oyo State of Nigeria delivered on 9th September, 2011 wherein the Tribunal dismissed the petition of the petitioners on the ground that the petitioners filed their application for issuance of pre-hearing notice out of time.

The facts leading to this appeal are that: On the 26th day of April, 2011, the 1st Respondent conducted election into the Oyo State House of Assembly seat for Akinyele 2 State constituency. The 1st Appellant and the 3rd Respondent were candidates amongst other candidates that also contested the said election. At the end of the election under reference the 3rd Respondent was returned as elected by the 1st Respondent having scored the highest lawful votes of 26,757 as against the 1st Appellant who scored 6,192 votes.

Aggrieved with the result declared, the appellants presented a petition against same at the National and State Houses of Assembly Election Tribunal on 17th May, 2011, on the grounds that:

12.1. The 3rd Respondent was at the time he contested the 26th day of April, 2011 House of Assembly Election, Akinyele 2 State Constituency got qualified to contest the said election and/or was not a fit and proper Person to offer himself for election into the House of Assembly Akinyele 2 State Constituency for not possessing the academic qualifications he claimed to have possessed in his nomination form 12.2. The 3rd Respondent was not duly elected by majority of lawful votes cast at the election.

Parties filed and exchanged pleadings (Petition and replies). After the service of the petition on the 2nd and 3rd Respondents, they filed a joint Respondent’s reply on 16/6/2011. The Petitioners/Appellants by a letter dated 7/7/2011 applied for issuance of pre-trial conference information sheet and on 15/7/2011 filed Form TF 008. The 2nd and 3rd Respondents filed their pre-hearing information sheet on 18/07/2011. On that same 18/07/2011 2nd and 3rd Respondents brought a motion on notice challenging the jurisdiction of the court based on failure of the Petitioners/Appellants to file FORM TF 008 within time. The said motion was argued and the lower Tribunal delivered its Ruling on 15/08/2011 striking out the motion on ground of incompetence. On the 22nd August, 2011 the 2nd and 3rd Respondents filed another motion challenging the jurisdiction of the Lower Tribunal.

The motion was argued and the Lower Tribunal in its ruling dismissed the petition of the Appellants for noncompliance with provision of paragraph 18 of the 1st schedule to the Electoral Act. See: pages 108 – 118 of the record. The petitioners/Appellants being dissatisfied with the ruling of the Tribunal lodged an appeal to this court against the Ruling on 22/9/2011 containing seven grounds of Appeal. On 31/10/2011 Appellants sought and obtained leave to amend the notice of appeal which now contains 8 grounds of appeal.

Parties filed and exchanged briefs of argument. Appellant’s amended brief is dated 31/10/2011 and filed on 1/11/2011. While 1st Respondent’s amended brief is dated 2/11/2011 and filed same date. The 2nd and 3rd Respondents’ brief of argument is dated 2/11/2011 and filed same date. At the hearing of the Appeal on 3/3/11, 2nd and 3rd Respondents’ counsel adopted the argument canvassed in their brief in respect of the preliminary objection raised as to the competence of the Notice of Appeal and Grounds of Appeal. Appellants’ counsel adopted and relied on the brief of argument and urged the court to allow the appeal. 1st Respondent’s counsel adopted the 1st Respondent’s brief and urged the court to dismiss the appeal. While the 2nd and 3rd Respondents’ counsel adopted their brief of argument and similarly urged the court to dismiss the appeal.

Appellants distilled seven issues from the eight grounds of appeal for determination of this court. The issues read thus:-

(i) whether or not the Lower Tribunal was functus officio and or competent to consider the 2nd and 3rd respondents’ motion on notice dated 22nd August, 2011 (GROUND 1).

(ii) whether or not the Lower Tribunal was functus officio and right to dismiss the petition when it had issued pre-hearing notices to all the parties in the petition which were never set aside or annulled nor any application made to that effect (GROUND 3).

(iii) whether or not the 2nd and 3rd Respondents were right to turn around to apply for dismiss (sic) of the petition having themselves filed answers to the pre-hearing notice before the Lower Tribunal (Ground 2 & 3).

(iv) whether or not the Lower Tribunal was right to allow technicality to defeat substantive justice (Ground 6).