Alhaji Akinola Sikiru Alli & Anor. V. Hon. Adegoke Saheed Adewale & Ors. (2002)

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ADZIRA GANA MSHELIA, J.C.A.

This is an appeal against the decision of the National and State Houses of Assembly Election Petition Tribunal sitting at Ibadan delivered on 13th December, 2011 dismissing the application of the Appellants.

The background facts leading to this appeal could be summarized thus:

The Independent National Electoral Commission (3rd Respondent) conducted an Election into the Oyo state House of Assembly seat for Ibadan South East State constituency 11, Oyo State on the 26th Day of April, 2011 and upon the conclusion of the said election declared the result and returned Alhaji Akinola Sikiru Alli, the 1st Appellant who contested on the platform of Action Congress of Nigeria, (A.C.N.) as winner. Not satisfied with the results declared, the 1st and 2nd Respondents as petitioners challenged the result of the election by filing a petition before the trial tribunal. The petition which was filed on the 18th May, 2011 is as set out on pages 2-54 of the record of appeal.

The petition had earlier on been dismissed pursuant to an application of the Applicants as 1st and 2nd Respondents before the trial Tribunal on the premise that the petitioners (1st and 2nd Respondents herein) failed to apply for the issuance of pre-hearing notice within 7 days of close of pleadings as mandatorily required by paragraph 18 (1) of the first schedule to the Electoral Act 2010 (as amended).

The said dismissal did not go down well with the 1st and 2nd Respondents who then appealed on the ground that the application which resulted into the said dismissal of their petition was heard and determined by a 3 man panel of the trial Tribunal instead of the chairman of the Tribunal sitting alone as envisaged by paragraph 27 (1) of the First Schedule to the Electoral Act, 2010 (as amended).

The order of dismissal was set aside by this court on the ground that a 3 man panel of the trial Tribunal, sat on the application contrary to the provision of paragraph 27 (1) of the First schedule to the Electoral Act, 2010 (as amended). This court held that only the chairman could entertain interlocutory applications and in consequence remitted the case back for re-trial de-novo before another panel of the trial Tribunal.

After the re-constitution by the new panel, the Appellants filed motion on notice dated 2nd December, 2011 and sought for a number of reliefs. On 13th December, 2011 the Appellants herein moved the said motion on notice. The appellants alleged that while Appellants counsel was still addressing the court in reply, the court there and then dismissed the application without deciding it on merit hence this appeal.

Dissatisfied with the decision of the lower Tribunal made on the 13th day of December, 2011, Appellants lodged an Appeal to this court vide their Notice of Appeal dated 23rd Day of December, 2011 and filed on same date.

In accordance with the practice of this court, parties filed and exchanged briefs of argument. Appellants’ brief of Argument dated 24th January, 2012 was filed on 25th January, 2012. The 1st and 2nd Respondents brief of Argument was dated 7th February, 2012 and filed 8th February, 2012. The 3rd Respondent’s brief of Argument undated was filed on 7th February, 2012. A reply brief dated February, 2012 was filed on same date: when the appeal came up for hearing all counsel adopted their respective briefs of argument.

Appellants’ counsel Michael F. Lana Esq. urged the court to allow the appeal; while 1st and 2nd Respondents’ counsel D. O. Titilola Esq. urged the court to dismiss the appeal. The 3rd respondent’s counsel B. O. Oyedepo Esq. urged the court to allow the appeal.

Appellants formulated three issues for determination as follows:-

(i) whether the failure of the lower Tribunal to hear and determine the issues in controversy in the Appellants’ application is not a denial of fair hearing.

GROUND 1