All Progressives Congress V. Senator Iyiola Omisore & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment)

This interlocutory appeal arose from the decision/ruling of the Governorship Election Tribunal Holden at Osogbo (Coram Justices Suleiman Ambrusa, A. N. Awulu and Benson ogbu) respectively who sat on the Governorship election that held in Osun State on 9th day of August 2014. The Ruling was delivered on Friday the 12th day of September 2014.

In an ex parte motion dated 22nd day of August, 2014, the 1st and 2nd Respondents sought, inter alia, an order for inspection of all electoral materials used in the conduct a of the election held on the 9th day of August 2014. The said application was moved and granted on 27/8/2014. The petition of the 1st and 2nd Respondents was filed on 28/8/2014.

Meanwhile, the Appellant brought an application challenging the jurisdiction of the tribunal to hear and grant the 1st and 2nd Respondent motion outside pre-hearing period and without leave as the said application did not comply w1h the provisions of paragraph 47 (1) of the first schedule to the Electoral Act 2010 and urged the tribunal to set aside the said order.

The 1st and 2nd Respondents filed a counter-affidavit and written address to which the appellant filed further affidavit and written address. All these were adopted before the tribunal and the tribunal on 12th September, 2014 ruled on the said objection and dismissed the Appellant’s application.

Dissatisfied with the said Ruling, the Appellant filed a Notice of Appeal containing six (6) grounds of appeal on 30/9/2014.

The relevant briefs of argument for this appear are as follows:

i. Appellant’s brief of argument dated 15/10/2014 and filed on the same day.

ii.1st and 2nd Respondent’s Brief of Argument incorporating a Notice of Preliminary objection dated 23/10/2014 and filed on 24/10/2014.

iii. Appellant’s Reply to the 1st and 2nd Respondent’s Brief of Argument dated 27/10/2014 and filed on the same day.

Learned Senior Counsel for the Respondent’s submitted on the Respondent’s Notice of Preliminary objection that a careful perusal of grounds 1, 2, 3, 4, 5 and 6 of the Notice of Appeal border on mixed law and facts for which leave of the Tribunal or this Honourable Court must be first sought and granted:

That in grounds 1 and 2 the issue of filing is a matter of facts. Ground 3 he said is simply a note which is an Obiter Dictum to which no appeal can lie.

He referred to the cases of Idris V ANPP (2008) 8 NWLR (Pt.1088) 1 at 11; Abacha V. Fawehinmi (2000) 6 NWLR (Pt.660) 229.

Again, said Counsel, Ground 3 involves facts as it involves Appellant notice of 27/8/2014 and all the surrounding facts. That Ground 4 tells of Exhibit B which is an issue of fact raised in the said ground.