Charles Ehigie Airhiavbere, Maj. Gen. (Rtd.) V. Comrade Adams Aliyu Oshiomhole & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JAMES SHEHU ABIRIYI, J.C.A.: (Delivering the Leading Judgment)

The Appellant was a candidate at the Gubernatorial Elections held in Edo State on the 14th of July, 2012. He contested on the platform of the Peoples Democratic Party. The 1st Respondent was the Action Congress of Nigeria (2nd Respondent’s) candidate in the said election. The 1st Respondent was declared winner of the said election.

The Appellant filed a petition before the Governorship Election Petition Tribunal sitting in Benin City, challenging the said election and return of the 1st Respondent as the duly elected Governor of Edo State.

Upon being served with the petition, the 1st Respondent filed his reply thereby joining issues between him and the Appellant. In response to the 1st Respondent’s reply, the Appellant filed a Petitioner’s Reply to the 1st Respondent’s Reply which the 1st Respondent considered to be inappropriate. The 1st Respondent raised an objection on the propriety of the Petitioner’s Reply and the accompanying documents filed.

The objection was heard and the trial Tribunal in its ruling upheld the objection and struck out the offending Paragraphs intended to be relied upon and other accompanying documents. Dissatisfied with the ruling of the Tribunal, the Appellant filed this appeal.

The Appeal is brought upon the following grounds reproduced immediately hereunder without their particulars:

“1. The Learned Chairman and Members of the Governorship Election Petition Tribunal sitting at Benin City erred in law when they held that Paragraphs 3, 4, 5, 7, 8, 9, 10, 11, 12, 13 and 14 of the Petitioner’s Reply to the 1st Respondent’s Reply to the petition introduced new facts, the effect of which amends and adds to the petition as originally filed by the Petitioner.

2. The Learned Chairman and Members of the Governorship Election Tribunal sitting at Benin City erred in law when they struck out most part of the Appellant’s Reply to the 1st Respondent’s Reply and the accompanying list of witnesses, Appellant’s list of documents to be relied on and Appellant’s witnesses’ Statements on Oath.”

Consequently, the Appellant seeks an order of this Court setting aside the ruling of the Tribunal except the part stating that Paragraph 6 of the Appellant’s Reply to the 1st Respondent’s Reply is competent and allowed; having been for the purpose of clarity and qualification, and the decision allowing the Appellant’s written witness deposition on oath in the interest of justice.

Learned Counsel for all the parties in their briefs of arguments which they adopted distilled an issue each from the two Grounds of Appeal. All issues are similar but I prefer the lone issue distilled by Learned Counsel for the Appellant which is; whether the Appellant’s Reply to the 1st Respondent’s Reply constitutes an amendment to the Appellant’s Petition.

It is submitted by Learned Senior Counsel for the Appellant that the Appellant’s Reply to the 1st Respondent’s Reply is valid, competent and does not constitute an amendment of the Petition. This Court is referred to Paragraph 16(1) of the First Schedule to the Electoral Act 2010 (as amended) which guided the Appellant while preparing his reply to the 1st Respondent’s Reply.

The contention of the 1st Respondent in Paragraph 12(b), it is argued is completely new. Therefore, an appropriate Reply is not only desirable but compelling. That the 1st Respondent raised a new issue of facts in Paragraph 12(c) of the 1st Respondent’s Reply to the Petition. That Paragraph 3 of the Appellant’s Reply to the 1st Respondent’s Reply responds to the new issue of facts relating to the issue of the 1st Respondent meeting constitutional qualifications. The Appellant is bound to reply on it, it is submitted, on the ground that the constitutional issue is raised for the first time. Reliance is placed on Adepoju v. Awoduyilemi (1999) 4 LRECN 53 at 73 D – F.

It is further submitted that Paragraph 9 of the Appellant’s Reply to the 1st Respondent’s Reply to the petition is valid and competent. Paragraphs 24 and 25 it is submitted, deal with fundamental constitutional issues relating to the ability or inability to contest in an election.

In the light of the foregoing, the Court is urged to hold that all the Paragraphs of the Appellant’s Reply to the 1st Respondent’s Reply to the Petition are valid and competent.

In Appellant’s Reply Brief to the 1st Respondent’s Brief, Learned Senior Counsel for the Appellant submits that the Appellant was not amending his Petition by his reply to the 1st respondent’s Reply. It is submitted that the new facts or issues raised by the 1st Respondent in his reply to the Petition necessitated the Appellant’s Reply that was the subject of attack in the lower Tribunal.