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

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment)

This is an appeal in respect of a Governorship Election Petition matter. A narrative of the salient facts is necessary. On the 20th of October, 2012, an election to the office of Governor took place in Ondo State. The 1st appellant Chief Dr. Alex Olusola Oke and the 1st Respondent Dr. Rahman Olusegun Mimiko were among the gubernatorial contestants in that election. The election was conducted by the Independent National Electoral Commission (INEC) the 3rd Respondent. While the 1st Appellant was sponsored in that election by a political party, the Peoples Democratic Party (PDP) the 2nd Appellant, the 1st Respondent was sponsored by another political party, the Labour Party (LP) which is the 2nd Respondent.

At the end of the election, the 3rd Respondent returned the 1st Respondent Dr. Mimiko as the winner of the election having received a total number of 260,199 at the election. The 1st Appellant came second in the election with 155,161 votes in his favour. Dissatisfied with the declared result, the Appellants filed a Petition dated 10/11/2012 before the Governorship Election Tribunal in Ondo State. The Tribunal heard the Petition and came to the following conclusion in its judgment delivered on 3/5/2013:

“From what we have stated so far, we came to the conclusion that head or tail, the Petitioners have failed to discharge the burden on them to the extent that the Governorship Election conducted in Ondo State on October 20th, 2012 was not conducted substantially in accordance with the principles and spirit of the Electoral Act but (sic) would not establish that the alleged non-compliance and/or electoral malpractices substantially affected the outcome of the election.

The burden does not shift to the Respondents to prove otherwise for the case of the Petitioners is completely lacking in merit. Accordingly this Petition No. EPT/OD/GOV/04/12 between Chief Alex Olusola Oke and 1 or V. Dr. Rahman O. Mimiko & 4 Ors is hereby dismissed”

Dissatisfied with the Judgment of the Election Tribunal, the Petitioners filed a Notice of Appeal dated 22/5/2013 in which they marshaled 37 grounds of appeal. They also sought the following reliefs from this Court:

1. An order of the Court of Appeal allowing the appeal.
2. An order of the Court of Appeal setting aside the judgment of the Governorship Election Tribunal delivered on 3rd of May, 2013.
3. An order of the Court of Appeal granting the reliefs sought by the Appellants in their Petition before the Governorship election Tribunal.

On 7/6/2013 Lateef Fagbemi SAN and a team of 12 other Counsel including one other senior Advocate of Nigeria, settled Appellants Brief of Argument. 4 days later, i.e. on 11/6/2013, Chief Wole Olanipekun SAN and a team of 15 other Counsel including six other Senior Advocates of Nigeria settled the Brief of Argument of the 1st Respondent. On the same 11/6/2013, the Brief of Argument of the 2nd Respondent was filed. The same was settled by a team of 8 Counsel led by Yusuf O. Ali, SAN. The team included two other Senior Advocates. Still on 11/6/2013 Chief Adegboyega Awomolo, SAN together with 18 other counsel including 2 other Senior Counsel settled the Brief of Argument of the 3rd – 5th Respondents. Appellants Counsel filed separately, replies to the briefs of the Respondents. The reply to 1st Respondents Brief was filed on 17/6/13, that in reply to the 2nd Respondent and 3 – 5th Respondents respectively were filed on 14/6/2013.

All the briefs having been filed, Counsel adopted their respective briefs before us on 25/6/2013. Appellants Brief of Argument was adopted by Dr. N.O. Oke SAN, that of the 1st Respondent was adopted by Wole Olanipekun SAN, that of the 2nd Respondent by Yusuf O. Ali SAN and that of the 3-5th Respondents by Dr. Onyechi Ikpeazu SAN.

It must be noted that before the briefs were adopted, counsel to the 1st and 2nd Respondents indicated that they had preliminary objections. They adopted their preliminary objections while Appellants Counsel adopted his response to the preliminary objections.

We shall consider the preliminary objections first. In the preliminary objection of 1st respondent, Chief Wole Olanipekun argued that grounds 1, 2 and 5 of the Appellants Notice of Appeal do not arise from the judgment of the Tribunal. He submitted that a ground of appeal which does not arise from the decision being appealed against is incompetent. He cited among other cases the case of Punch Nig. Ltd. V. Tribune Nig. Ltd. (2011) 12 NWLR part 1260 P. 162 at P. 173 – 174. He urged us to strike out issues 4 and 6 formulated from grounds 2 and 5 of the Notice of Appeal. Learned Senior Counsel argued that ground 14 of the Notice of Appeal is vague and that order 6 Rule 3 of the Court of Appeal Rules 2011 does not allow vague grounds, save the general ground that the Judgment is against the weight of evidence. He urged us to strike out grounds 1, 2, 3, 5, 12, 14 and 33 in the Notice of Appeal.

The 2nd Respondent’s Notice of preliminary objection is at P. 4-5 of the brief. In arguing the objection Yusuf O. Ali SAN contended that the Appellant did not distil any issue for determination from grounds 1, 3, 12, 13 and 37 in the Notice of Appeal and consequently, the said grounds of appeal have been abandoned should be struck out.

In his argument in response to the 1st Respondents preliminary objection, Appellants Counsel in his Reply Brief filed on 17/6/13 conceded that issues were not formulated from grounds 1, 3, 12 and 37 on the Notice of appeal and that for all intents and purposes those grounds of appeal stand abandoned. Learned Senior Counsel however did not concede on ground 2. With regard to ground 5 he was of the view that the ground is not elegantly worded but remained convinced that it deals with the impact of the invalid registrants that were found in the Election Register. He urged us that the case of Punch Nig. Ltd. V. Tribune Nig. Ltd. (Supra) and similar cases cited by the 1st Respondents counsel are irrelevant in this case.

Appellants counsel also responded to the 2nd Respondents preliminary objection in the Appellants Reply Brief filed on 14/6/2013. He conceded in his reply that grounds 1, 3, 12 and 37, of the grounds of appeal should be struck out since they would be deemed as abandoned.

With the appellants having conceded that issues were not formulated from