Ajao Ajadi Adams V. Babatunde Umar & Ors. (2008)

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JUMMAI HANNATU SANKEY, J.C.A.

On the 14th April, 2007, elections were held into the offices of the Executive Governors of the 36 States in the country as well as into the Houses of Assembly of the various States. The Appellant was the candidate of the Democratic Peoples Party (DPP) for the lIorin East Constituency, while the 1st Respondent was the candidate of the Peoples Democratic Party PDP), the 2nd Respondent to this Appeal. The election was organised, supervised and conducted by the 3rd to 5th Respondents, Independent National Electoral Commission ((NEC) and its officials. At the close of election, the 3rd to 5th Respondents credited the 1st Respondent with 74, 905 votes and declared him winner and duly elected on the 15th April, 2007. Dissatisfied with the process by which the 1st Respondent emerged victorious, the Appellant, as Petitioner, filed a Petition at the Governorship and Legislative Houses Election Tribunal Ilorin, challenging and seeking a nullification of the result declared by INEC. Upon being served with the Petition, the 1st and 2nd Respondents entered conditional appearances and went further to raise a preliminary objection to the hearing of the Petition in paragraph 1 of their Reply to the Petition. In furtherance to this, the 2nd Respondent, Peoples Democratic Party, filed a motion on notice supported by an affidavit wherein she further articulated her objection. She contested the competence of the Petition on the ground that it was in contravention of Paragraph 4(1)(c) of the Practice Directions 2007, (as amended), in that it failed to disclose the names and votes scored by the candidates at the election, except those of the 1st Respondent. In response, the Petitioner filed a counter affidavit and annexed therewith documents marked Exhibits A and A1 containing the result of the election and votes scored and declared for Ilorin South Constituency. In a considered Ruling, the Tribunal upheld the objection and struck out the Petition on the ground canvassed by the 2nd Respondent. It is now the Applicant’s position before this Court that he inadvertently did not raise and canvass the issues of the unconstitutionality and invalidity of the Election Tribunal and Court Practice Directions, 2007 as well as the effect of Paragraph 49(2) of the First Schedule to the Electoral Act, 2006 on the conduct of the Respondents, vis-a-vis the 2nd Respondent’s motion of 11/06/07. Thus, he has filed a motion before this Court seeking to raise the said issues for the first time in this Court.

The Applicant/Appellant in the application thus seeks the following reliefs:

1. Leave of the Court allowing the Applicant to raise and argue issues of law not raised and canvassed before the lower Tribunal.
2. An Order of Court deeming Grounds 1and 5 of the Grounds of Appeal which raise fresh issues not raised and canvassed before the lower Tribunal as duly filed and served, the prescribed fees having been paid.
3. An Order of Court deeming the Applicant/Appellant’s Brief as duly filed and served, the prescribed fees having been paid.

On the 23rd January, 2008, when this application came up for hearing, the court ordered that same should be incorporated into the main Appeal to be heard simultaneously. Learned Counsel therefore argued the application as well as the Appeal concurrently.

Mr. Jawondo, learned Counsel for the Applicant/Appellant, moved his motion and adopted the Applicant’s written address in this regard. He submitted that, at this stage, the court is not concerned with the reason(s) why the new issue was not raised at the lower court, but with the substantiality of the issues raised. He therefore urged the Court to grant the application. With respect to the main Appeal, Mr. Jawondo adopted the Appellant’s brief dated and filed on the 17th December, 2007. In further substantiation of the Brief, he made the following oral arguments: Learned Counsel submitted that one of the main grounds of the Appellant’s complaint in the Petition is that he was not credited with any result at all. The result released was as if the election was an uncontested election and only the 1st Respondent, of all the candidates that contested the election, had a result. Surprisingly, it is also for the same reason that the election was struck out, i.e. for failure to plead the scores of the Appellant and the scores of the other candidates which were not released by INEC. This is despite the fact that paragraphs 9 and 10 of the Petition, which pleaded these facts, had not been denied by the Respondents. In the circumstances, he prayed the Court to allow the Appeal and make the necessary orders to ensure that the Petition is heard on its merit.

Mr. Egbewole, learned Counsel for the 1st Respondent, in opposing the application, filed a Counter Affidavit dated and filed on the 18th January, 2008. He adopted his written address, (annexed to the Counter Affidavit as the 15t Respondent’s arguments in opposition to the application), and urged the Court to refuse the application. In respect of the main Appeal, learned Counsel adopted the 1st Respondent’s Brief dated 31st December, 2007 and deemed filed 23rd, January, 2008. In addition to his written arguments, learned Counsel submitted that issues were joined on paragraphs 9-10 of the Petition. He contended that the failure of the Appellant to disclose the results of the election even when he had access to them was found by the Tribunal to be in contravention of the provisions of the Electoral Act. He therefore urged the Court to dismiss the appeal with substantial costs.

Finally, Mr. Oniyede, learned Counsel for the 2nd Respondent, submitted that even though the 2nd respondent had not filed any Counter Affidavit or written address in response to the application before the Court, he had raised a preliminary objection to the hearing of the Appeal in the 2nd Respondent’s Brief of argument. The preliminary objection addresses the same issue raised in the application. He therefore urged the Court to refuse the application seeking to raise new issues before this Court. In respect of the main Appeal, learned Counsel adopted the 2nd Respondent’s Brief of Argument filed on 24th December, 2007 and urged the Court to dismiss the Appeal.

The 3rd, 4th and 5th Respondents to this Appeal, though duly served with all the processes of Court in this Appeal, including a hearing notice for the date of hearing, neither filed any process nor appeared in Court by themselves or through counsel on their behalf.

The Applicant in his Written Address in support of the application formulated one sole issue for the determination of the Court as follows:

Having regard to the new issues or fresh issues being sought to be raised in this Appeal, whether the Appellant/Applicant is entitled to the discretion of the Court to raise and argue the new or fresh issues.

Learned Counsel for the Applicant contends in essence that the Applicant has met the two conditions for the grant of this relief, i.e. that the question involves a substantial point of law and that no further evidence will need to be adduced in deciding the new issue.

On his own part, the 1st Respondent’s Counsel also formulated one sole issue for the determination of the Court thus:

Whether the Appellant/Applicant has satisfied the requirement of the law to entitle him to the discretion of the Court to allow him to raise/argue fresh issues that were not canvassed before the trial Tribunal.

While conceding that this Court has the unfettered discretion to grant leave to an applicant to raise and argue issues not raised, canvassed or agitated before a lower Court, he submitted that such jurisdiction must be exercised judicially and judiciously based on materials presented to the Court. It is his contention that no such materials have been placed before this Court by the Applicant. He went further to submit that the Applicant’s failure to raise the issues before the Tribunal was deliberate and in furtherance of the exercise of the professional judgment of learned Counsel for the Applicant. He contended that for a new issue to be raised for the first time on appeal, the Applicant is required to show special circumstances why such new issues should be allowed to be raised. In the absence of such, the application must fail. He relied on Pilede v. Shonekan (1995) 1 NWLR (Pt. 374) 668 at 685. It is the contention of learned Counsel that the new issue sought to be raised must not only be a substantial one of law but must in addition satisfy the twin requirements of: