Alhaja Ayo Omidiran V. Etteh Patricia Olubunmi & 343 Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JCA(Delivering the Leading Judgment)

This is an appeal against the rulings and judgment of the Governorship and Legislative Houses Election Petition Tribunal holden at Osogbo (hereinafter referred to as the Tribunal) delivered on 17th January 2008, 3rd March 2008, 31st March 2008 and 31st May 2008 respectively.

On 21st April 2007 elections were held into the Federal House of Representatives for the Ayedaade/Irewole/Isokan Federal Constituency of Osun State. The appellant contested the election on the platform of the Action Congress (AC) while the 1st respondent contested on the platform of the Peoples Democratic Party (PDP). At the conclusion of the election, the 3rd and 4th respondents returned the 1st respondent as the winner. The appellant was dissatisfied with the return of the 1st respondent and filed a petition before the Tribunal, which was subsequently amended by order of court, challenging the said return on the ground, inter alia, that the election was characterised by numerous electoral malpractices, irregularities and non-compliance with the provisions of the Electoral Act 2006. She sought a declaration that the election was invalid and therefore vitiated by reason of non-compliance with the Electoral Act; an order nullifying the elections; and an order directing the 3rd respondent to conduct fresh elections for the said Federal Constituency.

The parties duly filed and exchanged pleadings, witness statements on oath and list of documents to be relied upon at the hearing in compliance with the Practice Directions 2007. After the conclusion of pre-hearing sessions the matter proceeded to trial. The appellant called 16 witnesses and tendered various documents through them. The 1st and 2nd respondents called 5 witnesses. The 3rd – 342nd respondents (INEC and its officials) and the 343rd – 344th respondents (the law enforcement agents) did not call any witnesses. At the conclusion of the trial the parties filed and exchanged written addresses. In a considered judgment delivered on 31st May 2008 the Tribunal dismissed the petition.

The appellant being dissatisfied with the decision filed a notice of appeal dated 19th June 2008 containing 9 grounds of appeal. Pursuant to an order of this court granted on 1st July 2009 she filed an amended notice of appeal dated 28/8/08 and filed on 29/8/08. The appellant, 1st and 2nd respondents, and 343rd and 344th respondents filed and exchanged their respective briefs of argument. The 3rd – 342nd respondents did not file any brief. Mr. Tope Adebayo, learned counsel for the appellant adopted and relied on the appellant’s brief dated 20/10/09 and deemed filed on 8/12/09 and the reply brief to the 1st and 2nd and 343rd and 344th respondents’ briefs dated 20/12/09 and filed on 22/12/09. He cited two additional authorities in support of issue 5 at page 65 of his brief: Ukpo vs Imoke (2009) 1 NWLR (1121) 90 at 124 and Amgbare vs Sylva (2009) 1 NWLR {1121) 1 at 62 – 63. He urged the court to dismiss the 1st and 2nd respondents’ preliminary objection and allow the appeal. Chief Abayomi Alliyu adopted and relied on the 1st and 2nd respondents’ brief dated and filed on 8/12/09. He drew the court’s attention to the preliminary objection raised and argued at pages 10 – 16 of the brief. He urged the court to uphold the preliminary objection. Alternatively he adopted and relied on the submissions in respect of the issues for determination and urged the court to dismiss the appeal. Mr. M.O. Adedokun, Senior State Counsel, Ministry of Justice, Osun State, adopted and relied on the 343rd and 344th respondents’ brief dated and filed on 8/12/09. He urged the court to dismiss the appeal and uphold the judgment of the Tribunal.

From the 22 grounds of appeal contained in the amended notice of appeal, the appellant formulated 5 issues for determination thus:

1. Whether the refusal to allow the appellant call additional witness to give evidence of the inspection conducted pursuant to the order of the Tribunal is not tantamount to a breach of the fundamental right of the appellant to fair hearing. (Grounds 1 & 2).
2. Whether denying the representative of the Resident Electoral Commissioner, Osun State: on subpoena: the opportunity to give evidence did not amount to a breach of the appellant’s right to fair hearing. (Grounds 3, 4 & 5).
3. Whether it is necessary to obtain the consent of the respondents before the Tribunal could admit the original of ballot papers, ballot boxes and studs of ballot papers produced by INEC in evidence despite the fact that they were admitted by the respondents in their respective pleadings. (Grounds 6 & 7).
4. Whether the Tribunal was not wrong, improperly exercised judicial discretion and/or misapplied the law in its evaluation and ascription of probative values to oral, documentary and real evidence before it. (Grounds 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21 and 22).
5. In view of the established substantial noncompliance with the provisions of the Electoral Act established on record, whether the Tribunal should not have held that the election was invalid by reason of noncompliance with the provisions of the Electoral Act 2006 and other mandatory statutory requirements which substantially affected the validity of the said election. (Ground 13).

The 1st and 2nd respondents adopted the five issues formulated by the appellant. The 343rd and 344th respondents formulated a single issue for determination thus:

“Whether the petitioner has proved the allegation of acts of massive rigging, electoral malpractices, substantial irregularities, ballot stuffing, double voting and act of thuggery that he made against the 343rd and 344th respondents. (Ground 12).”

Before considering the merit of the appeal, it is necessary to consider the preliminary objection raised by the 1st and 2nd respondents at pages 10 – 16 of their brief. It is their contention that grounds 1, 2, 4 and 9 of the grounds of appeal and their respective particulars are incompetent. Specific reference was made to ground 1 and particular (vi) thereof, ground 2 and particulars (iii) and (vi), ground 4 and particulars (ii), (iii) and (vi) and ground 9 with all its particulars. It is further contended that issues 1, 2, 3 and 4 formulated from the incompetent grounds of appeal should be struck out. In respect of grounds 1, 2, 4 and 9, learned counsel submitted that they are not in compliance with the provisions of Order 6 Rule 2 (3) of the Court of Appeal Rules 2007 for being argumentative, prolix, vague and general in terms. He cited the cases of: Kalu vs Uzor (2006) 8 NWLR (981) 66 at 85 A – F: Khalil vs. Yar’ Adua (2003) 16 NWLR (847) 446 at 477 – 479. On striking out issues formulated from incompetent grounds of appeal, he relied on: Korede vs Adedokun: suit no. CA/I/14/92 delivered on 30/6/94 (unreported); Ngige vs Obi (2006) 14 NWLR (999) 1 at 165 D – H. It is also contended that grounds 15 and 17 allege error in law and misdirection in the same grounds. On the incompetence of these grounds he relied on: Nwadike vs Ibekwe (1987) 4 NWLR (67) 718 at 744 – 745: Ufayo vs Dabiri (2008) 6 NWLR (1083) 225 at 237: Agbaka vs Amadi (1988) 11 NWLR (572) 16 at 24.

In reply, learned counsel for the appellant submitted with regard to grounds 1, 2, 4 and 9 and their particulars that all that the particulars have done is to give the basis of the appellant’s complaint against the judgment of the Tribunal. With regard to particular (vi) of ground 1 he submitted that the appellant mentioned the facts contained in the inspection report, which the appellant’s witness was not allowed to tender or give evidence upon by the Tribunal.

On the submission that grounds 15 and 17 allege both error in law and misdirection on facts, he submitted that this fact alone is not sufficient to render the grounds incompetent so long as from the manner in which the ground is couched the adverse party is not in doubt as to what the appellant’s complaint is. He relied on: Aderounmu vs Olowu (2000) 4 NWLR (652) 253 at 265 – 266 H – B & 272 B – C. He noted that the Supreme Court in Aderounmu’s case cautioned against interpreting the decision in Nwadike Vs Ibekwe (supra) as – making a blanket pronouncement that once error in law and misdirection on facts are contained in the same ground, the ground is automatically incompetent. He submitted that the apex court took a similar position in the case of: Humbe vs Hueze (2001) 4 NWLR (703) 372 at 385 – 387 &. 389 – 390 H – B: also: Akanbi vs Salawu (2003) 13 NWLR (838) 637 at 648 G ‘E2’80” H and NITT vs Dange (2008) 28 WRN 124 at 140 lines 45 – 50.

I have carefully considered the submissions of learned counsel and the authorities cited by them as regards the competence of the grounds of appeal. I have considered grounds 1, 2, 4 and 9 and the particulars thereof complained of by learned counsel for the 1st and 2nd respondents. I agree with him that they are unnecessarily prolix and argumentative. However the complaints therein are clear. The objection raises an issue of technicality, which does not affect the substance of the said grounds of appeal. The courts have moved away from reliance on technicalities in favour of substantial justice. I am of the view and do hold that notwithstanding the inelegant manner in which the grounds of appeal are drafted, they are valid grounds of appeal. I have also considered grounds 15 and 17, which complain of both error and misdirection. The guiding principle in respect of the objection raised was well stated by the Supreme Court in the case of: Aderounmu vs Olowu (2000) 2 SC (part II) 1 at 8 lines 21 – 31 & page 9 lines 4 – 10 per Ayoola, JSC thus:

”In my opinion, what is important in a ground of appeal, and the test the court should apply, is whether or not the impugned ground shows clearly what is complained of as error in law and what is complained of as misdirection, or, as the case may be, error of fact, The view, with which I am inclined to agree, is expressed by the Court of Appeal case of Neogwuija & Ors vs Ikuru & Ors. (1998) 10 NWLR (569) 267, 310 that the mere fact that a ground of appeal is framed as an error and a misdirection does not make it incompetent.

What makes a ground incompetent is not whether it is framed as an error and a misdirection but whether by so stating it, the other side is left in doubt and without adequate information as to what the complaint of the appellant actually is.