Benson Ojegbe & Anor V. Kent Omatsone & Anor (1999)

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MAHMUD MOHAMMED, J.C.A.

In the election into the Delta State House of Assembly conducted on 9-1-99, the Appellants Merrs Benson Ojegbe and Solomon Atseponu and the 1st Respondent Mr. Kent Omatsone contested for the seat in the Warri South West Local Government Area Constituency. At the close of the election, the 1st Respondent who contested the election under the platform of the Peoples Democratic Party (PDP) was declared by the 2nd – 5th Respondents as the winner of the election. The 1st and 2nd Appellants who contested the election under the platform of the Alliance For Democracy (AD) and All Peoples Party (APP) respectively who were aggrieved by the declaration of the 1st Respondent as the winner of the election, filed two separate Petitions dated 23-1-99 and 20-1-99 respectively before the Delta State House of Assembly and governorship Election Tribunal sitting at Asaba, challenging the election and return of the 1st Respondent. The grounds upon which the two Petitions challenged election of the 1st Respondent were identical. The grounds were

1. That election did not hold in the Warri South West Local Government Area Constituency.
2. That inspite of the fact that no election was held results were released showing that 1st respondent scored 52,157 votes while 1st and 2nd Appellants scored 6791 votes and 7206 votes respectively.
3. That the declaration of the 1st Respondent as the winner of the election was illegal, unconstitutional null and void.
4. That the 1st Respondent was not even qualified to contest the election.

The 1st Respondent filed two separate replies to the 1st and 2nd Appellants’ petitions respectively while 2nd – 5th Respondents did not file any reply. On 5-3-99 when the two petitions came before the Tribunal for hearing, on the application of the 1st and 2nd Appellants, their two petitions Numbers DT/EPT/HA/1/99 and DT/EPT/HA/2/99 were consolidated by the Tribunal and heard together with the same learned counsel appearing for the appellants. At the end of the hearing the Tribunal in its judgment delivered on 17-3-99 dismissed the two petitions with N1, 000.00 costs against each of the two Appellants.

The two Appellants who were not satisfied with the judgment of the Tribunal have now appealed to this Court through their joint Notice of Appeal filed on 23-3-99 containing the following grounds of appeal without their particulars-

1. The Tribunal erred in law in declaring the 1st Respondent as having won the House of Assembly election slated for 9th January, 1999 and scored the majority of valid votes cast in Warri South West LGA Constituency when there was no House of Assembly election on 9th January, 1999 or any date at all.
2. That the Tribunal misdirected itself or the facts when it placed reliance and used on document that were not pleaded by the Respondents but tendered by the 4th Respondent and were admitted.

by the Tribunal as the main reason for believing the evidence of the 1st Respondent and his witnesses and disbelieving that of the Appellant.

3. The Tribunal erred in law in declaring that there was the House of Assembly election in Warri

South West LGA Constituency on 9th January, 1999 when there was no election on that day or any day at all in Warri South West LGA Constituency.

4. That the Tribunal erred in law when it declared that the 1st Respondent was not dismissed from the service of warri South Local Government Council, Warri.
5. That the judgment decision of the Tribunal is against the weight of evidence.

Although the Appellants brief was filed on 16-4-99 and served on the Respondents the same day, neither the 1st Respondent nor 2nd – 5th Respondents filed and served the Respondents brief within the 3 days period prescribed by paragraph 7 of the Practice Direction No. 2 of 1999 issued under sections 136, 139, 140 and Schedule 6 of Decree No. 3 of 1999. The application by the 1st respondent for the leave of this Court to be heard in oral argument under Order 6 Rules 9 and 10 of the Court of Appeal Rules 1981 at the hearing of this appeal yesterday, 21-4-99, was heard and dismissed by this Court. Consequently, the appeal was heard on the appellants brief of argument alone.

In the Appellant’s brief, the following 5 issues were formulated from the above 5 grounds of appeal:

“1. Whether the Tribunal was right in relying on documents in possession of the Respondents but not pleaded by them to form the basis of its judgment.

2. Whether inconsistencies in the evidence of the Respondents witnesses as to the time of arrival of electoral materials at the polling units (stations) and time of the election are not contradictions.
3. Whether the Tribunal was right in asserting that it did not believe in the evidence of the petitioners and their witnesses without giving reasons for such assertions.
4. Whether the cases cited viz: Omoboriowo v. Ajasin (1984) 1 SCNLR 108 at 112; Nwobodo v.

Onoh (1984) 1 SC 1 at 38; and Abdullahi v. Gaya & Ors. (1992) 2 LRECN 144 relied on by the

Tribunal are relevant in this case.

5. Whether the 2nd – 5th Respondents failure to file their replies to the petitions is not an admission of the petitioners pleadings.”

It is trite law that issues for determination in an appeal should not be framed in the abstract but in concrete terms, arising from and related to the grounds of appeal filed. See Okpola v. Ibeme (1989) 2 NWLR (pt.102) 208 at 221 and Abisi v. Ekwealor (1993) 6 NWLR (pt 302) 643 at 38 665. It is also the law that a ground of appeal on which no issue for determination has been framed in the appellant’s brief of argument is deemed to have been abandoned and should be struck out. See Baridam v. The State (1994) 1 NWLR (pt 320) 250 and Adigun v. Ayinde (1993) 8 NWLR (pt 323) 516. In the present case, it is quite clear on relating the 5 issues for determination identified in the appellant’s brief quoted above, that grounds 1 and 2 which complained of errors in law on the part of the Tribunal in declaring that that there was election and/the 1st Respondent was duly elected, have not been raised in any of the 5 issues identified in the brief. Grounds 1 and 2 of the grounds of appeal are therefore deemed abandoned and accordingly are hereby struck out.

Similarly, none of the 5 issues in the Appellant’s brief can be related to ground 4 of the grounds of appeal which specifically complained of an error in law on the part of the Tribunal when it declared that the 1st Respondent was not a dismissed officer. Thus ground 4 of the grounds of appeal having been abandoned is hereby struck out.

This leaves grounds 2 and the omnibus ground 5 to sustain the appeals if any or some of the 5 issues can be related to the two remaining grounds of appeal.