Chief Alex Olusola Oke & Anor V. Dr. Rahmah Olusegun Mimiko & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR B. GUMEL,J.C.A (Delivering the Leading Judgment)

On the 20th October, 2012, a governorship election was organized and conducted by the 3rd Respondent (INEC) in Ondo State. Thirteen political parties sponsored candidates to contest the election. The 1st Appellant was the candidate of the 2nd Appellant (Peoples Democratic Party – PDP) while the 1st Respondent was the candidate of the 2nd Respondent (Labour Party – PDP). At the end of the election and after the votes collation exercise, the 3rd Respondent declared the 1st Respondent as the winner of the election with 260, 199 votes. The 1st Appellant scored 155, 961 votes.

The Appellants were dissatisfied with the declaration of the result of the election and return of the 1st Respondent as the winner. They sought to challenge the result and return of the 1st Respondent in an Election Petition Number EPT/OD/GOV.04/2012 dated and filed on 10th November, 2012 before the Ondo State Governorship Election Tribunal, Akure. Upon being served with the petition, the Respondents filed their respective replies to it, while the Petitioners filed replies to the Respondents’ replies.

After having fully joined issues with the Petitioners/Appellant each of the 3 sets of Respondents raised a preliminary objection to a number of the paragraphs of the Petition. In addition to his challenge of some of the paragraphs of the Petition, the 1st Respondent further challenged and objected to the competence of the petition as it affects the joinder of the 2nd Appellant as a party to it. Against and added to this background the Respondent filed respective motions pursuant to Paragraph 12(5) of the 1st schedule to the Electoral Act, 2010; as amended (1st Schedule), for a preliminary of the various objections.

The Appellants filed counter affidavits to each of these motions and also filed their own motion dated 16/01/13. This application sought for the following 4 reliefs.

They are: –

“1. “AN ORDER of this Honourable Tribunal extending the time within which the Petitioners may file and make use of additional or further witness depositions accompanying this application for a just and fair determination of the Petition”.

2. “AN ORDER of this Honourable Tribunal granting leave to the Petitioners/Applicants to call an additional witness, to with: “A.E.O” whose statement/deposition on oath accompanies this motion”.
3. “AN ORDER of this Honourable Tribunal granting leave/allowing the Petitioners/Applicants to file, serve and rely on further and additional Witness Statement on Oath in support of this Petition which said additional statement accompanies this motion”
4. “AN ORDER of this Honourable Tribunal deeming as properly filed and served the further and additional witness’ statement on oath accompanying this motion”.

It is supported by a 17 paragraph affidavit deposed to by Mr. Olasupo Ijabadeniyi, a Legal Practitioner among the team of lawyers appearing for the Petitioners/Appellants, and a written address. The Respondents sought to oppose this application. They each filed counter-affidavits and written addresses respectively. Against the written addresses of the Respondents, the Petitioners/Appellants filed replies on points of law.

After due consultation and with the consent of respective learned counsel in this, petition as well as other petitions before the Tribunal, all pending applications were consolidated and argued. In a composite ruling delivered on 4th February, 2013, and as it affects, the within named Appellants, the Tribunal refused their application for leave to adduce further evidence and to call additional witness. The Tribunal also decided in favour of the Respondents/Respondents and against the Petitioners/Appellants when it struck out many of the paragraphs of the petition for either being vague, general and generic or having made criminal allegations against persons who were not parties to it etc. It also decided in favour of the 1st Respondent when it held that the 2nd Petitioner/Appellant was not properly joined in the petition and proceeded to strike out its name. The Petitioners/Appellants were dissatisfied with this part of the ruling and appealed in a notice of appeal dated 5/02/13 containing 19 grounds of appeal with very detailed and copious particulars. The 1st Respondent was also dissatisfied with part of the ruling of the Tribunal to the extent that it refused and declined to strike out the entire Petition. Against this, he cross- appealed in a notice of cross appeal dated 18/2/13 but filed on 19/2/13. The cross appeal is predicated on 3 grounds.

To argue the appeal, the Appellants filed a brief of argument dated 18/2/13. From the grounds of appeal, the Appellants’ brief identified and formulated the following 6 issues for the determination of this appeal.

They are: –

“1. Whether having regard to the facts before it, the tribunal was right to have hated Appellants, application for enlargement of time and leave to adduce further evidence and call additional witness as one for an amendment of the petition. (Grounds 1, 2, 6 and 8)

2. Whether giving the materials before it, the tribunal properly, judicially and judiciously exercised its discretion in refusing Appellants, application for enlargement of time and leave to adduce further evidence and call additional witness and whether the refusal has not occasioned a miscarriage of justice (Grounds 3, 4, 6 and 7)
3. Whether giving the facts contained in the petition, the tribunal rightly struck out the name of the 2nd Petitioner/Appellant from the petition (Grounds 15, 16, 17, 18 and 19)
4. Whether the tribunal correctly resolves the evidence before it concerning the status of Hon. Chris Omotuyi who co-signed the petition on behalf of the 2nd Petitioner/Appellant. (Grounds 9 and 10)
5. Whether the Tribunal was right to have struck out paragraphs 10, 13, 35, 36, 38, 39, 40, 42, 43, 45 46, 47, 54, 55, 56, 57, 58, 60, 61, 62, 63, 64, 66, 67, 68, 71, 77, 78, 80, 84, 86, 87, 88, 90, 91, 92k, 93(2), 93(6), 93(9), 93(11), 96(2), 96(24), 97(1), 98(1)(xxi), 100(3), 100(18), 103(3) and 103(4) of the Petitioners/Appellant’s petition far being vague, general, speculative, omnibus and nebulous.

(Grounds 11 and 12)

6. Whether the Learned Trial Tribunal was right to have struck out paragraphs 81, 91(2) (d), 92(2) ward 3(e), 92(2) ward 4(i); 92(2) ward 6(a) and (f); 92(3) at page 33; 92(4) also at page 33; 93(10) at page 68; 95(10)-(14) (16)-(25) (31) and (34)-(39); 97(3)(4)(5)(7) and 7(a)(b)(c)(d) & (e) 98 (4); 98 (1) xxi, xxix on page 173 to 176; 100 (6)(8)(11)(13) and (17)(18)(19)(23) & (24); 103 (5)(xiii), 104(6) & (7), 106(1)-(7) on pages 260-262 of the Petitioners/Appellants’ petition being criminal allegations against persons who are not joined in the petition. (Grounds 13 and 14)

In his response to the appeal, 1st Respondent filed a brief of argument dated 27/2/13 on 28/02/13 which upon his application was deemed properly filed and served on 6/3/13. To argue against the appeal, the 1st Respondent formulated 4 issues for the determination of this appeal. They are: –