Chief Alex Olusola Oke Vs Dr. Rahman Olusegun Mimiko (2013)

LAWGLOBAL HUB Lead Judgment Report

I. T MUHAMMAD JSC

Governorship election was held in Ondo State on the 20th of October, 2012. Dr. Rahman Olusegun Mimiko, 1st respondent herein, was the candidate presented for the election by the Labour Party (2 respondent). He was declared winner of the said election having scored the majority of votes cast and having satisfied the requirement of the Constitution as to geographical spread of the votes. In a petition No. EPT/ON/GOV/04/2012 filed by Chief Olusola Oke and another before the Governorship Election Tribunal, holden at Akure (the tribunal for short), the petitioners who are the appellants herein sought for the following reliefs:—

‘That it may be determined and thus determined that the 1st respondent, Dr. Rahman Olusegun Mimiko sponsored at the election by the 2nd respondent was not duly elected or returned by the majority of lawful votes cast at the governorship election held in Ondo State on Saturday, 20th October, 2012

That it may be determined and thus determined that the election and return of Dr. Rahman Olusegun Mimiko as candidate of the 2nd respondent at the governorship election held on Saturday 20th of October, 2012 are vitiated/voided by corrupt practices widespread acts of substantial non-compliance and massive rigging.

AN ORDER setting aside as null and void the purported election and return of the 1st respondent, Dr. Rahman Olusegun Mimiko the 2nd respondents candidate as governor of Ondo State based on the election conducted by the 3rd – 5th respondents on 20th October, 2012.

A DECLARATION that having regard to the lawful votes cast at the said election, it was the 1st petitioner and not the 1st respondent that scored the majority of lawful votes cast at the election and also secured at least 25% in more than 2/3 of the 18 Local Governments in Ondo State and ought to have been declared and returned as the winner of the election.

AN ORDER declaring the 1 petitioner elected and returned as governor of Ondo State having polled majority of the lawful votes cast at the said election and also scoring at least 25% in at least 2/3 of the local governments in Ondo State.

That it may be determined and thus determined that having secured majority of the lawful votes cast at the election of 20th October, 2012, and having satisfied all other constitutional requirements in that regard, your 1st petitioner ought to have been declared elected and returned as the governor of Ondo State.

ALTERNATIVELY:

A DECLARATION that the Ondo State Governorship election held on 20th October, 2012 by the 3rd – 5th respondents in which the 1st respondent and petitioner are respectively candidates is null and void having been marred and vitiated by massive rigging, widespread substantial non-compliance and corrupt practices.

AN ORDER nullifying the said governorship election and directing the 3rd Respondent to conduct a fresh governorship election in Ondo State within a period determined and directed by this Honourable Tribunal.

Any other orders.’

The respondents, each filed his/its respective reply to the petition. The petitioners filed replies where necessary.

After the close of pleadings, the appellants filed in the Tribunal a motion dated the 16th day of January, 2013. The reliefs sought in that motion read as follows:-

‘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.

AN ORDER of this Honourable Tribunal granting leave to the Petitioners/Applicants to call an additional witness, to wit ‘A.E.O.’ whose statement/deposition on oath accompanies this motion.

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.

AN ORDER of this Honourable Tribunal deeming as properly filed and served the further and additional witness statement on oath accompanying this motion.

AND FOR SUCH further or other orders the Honourable Tribunal may deem fit to make in the circumstance.”

In response thereof, the respondents filed all necessary processes in opposition to the appellants motion. The tribunal heard the motion, and some other motions during the pre-hearing session. In its ruling delivered on the 4th of February, 2013, the tribunal refused the application. Dissatisfied with the said ruling, the appellants appealed to the Court of Appeal, Akure Judicial Division (the lower court). In its decision of 28th March, 2013, the lower court affirmed the Ruling of the tribunal.

Dissatisfied further, the appellants filed their appeal to this court on five grounds of appeal. There is also filed a cross-appeal by the 1st respondent/cross-appellant. I shall re-visit this cross-appeal later in this judgment.

After having settled briefs of arguments, each of the parties formulated issues for this court to consider in determining the appeal. The learned counsel for the appellants issues are as follows:-

‘Whether the Court of Appeal was not In error and its decision perverse and unreasonable when it failed to apply the principles guiding the grant of application for extension of time as laid down by the Supreme Court in Mobil Oil Nig. Ltd. v. FBIR (1977) 3 SC 53 and Ukwu v. Bunge (1997) 8 NWLR (PL518) 527 to the consideration of appellants application.

Considering the fact that the evidence sought to be adduced was covered by the pleadings and given the further facts that the appellants both in the grounds and supporting affidavit to the application generously supplied materials justifying the application for extension of time and leave to adduce further evidence and call additional witness, whether the Court of Appeal was not in error which occasioned miscarriage of justice when it affirmed the decision of the trial court which wrongly treated appellants application as one for amendment of the petition which if granted would over-reach the respondents without showing or demonstrating how it arrived at the decision.’

Learned SAN for the 1st respondents lone issue reads as follows:-

‘Having regard to the sui generis nature of an election petition, the provisions of statutes, rules of court and practice directions and the binding decisions of appellate courts, whether the Court of Appeal was not right when it affirmed the decision of the trial tribunal which refused the appellants application to file additional or further witness depositions outside the period provided for in the Electoral Act.’

Learned SAN for the 3rd – 5th respondents sole issue is as follows:-

‘whether the Court of Appeal was right when it upheld and agreed with the Tribunal that granting of the appellants application would overreach and prejudice the respondents.

The appellants two issues were argued together in the brief of argument. 1s1 respondents issue is identical with the issue formulated by the 3rd – 5th respondents counsel.

I will take all the issues together as they are of same tenor, though differently couched. It is the submission of learned SAN for the appellant that the appellants complaint before the court below was that the trial tribunal wrongly treated the application leading to this appeal as one for amendment, when the prayers, grounds and affidavit evidence clearly show that it was for extension of time. The point was also made before the court that the evidence sought to be adduced was covered by the pleadings before the tribunal and therefore required no amendment to the petition. It was also strongly contended that the trial tribunal reached it erroneous decision because it failed to consider the nature of the evidence contained in the accompanying witness depositions. It was submitted further that the Court of Appeal in arriving at its decision to uphold the trial tribunals decision which treated appellants application for extension of time as one for amendment, failed to consider the appellants complaint that the tribunal failed to examine the evidence sought to be tendered with due regard to the pleadings and that the pleadings cover the evidence accompanying the application. The learned SAN conceded that an application for extension of time seeks the exercise of a discretionary power of the Court, he however submitted that such discretion is not exercisable on mere figment of the person doing so but upon facts and circumstances necessary for the proper exercise of that discretion. He referred to Osuji v. Ekeocha (2009) All FWLR (Pt.490) 614 at 647. He argued further that an appellate court has a duty to interfere with the exercise of judicial discretion if it is shown to have been exercised without due regard to the facts and circumstances presented before it from which it must draw a conclusion which must be governed by law.

The learned SAN cited several cases to support his submission: Osuji v. Ekeocha (2009) All FWLR (Pt.490) 614 at 647; Tanko v. State (2009) 4 NWLR (Pt. 1131) 430 at 457; Onyeyemi v. Irewole Local Government (1993) 1 NWLR (Pt.270) 462 at 484.

The learned SAN challenged the exercise of discretion of the Court of Appeal as it demonstrated total failure to consider dispassionately, the case of the appellants that evidence in support of pleaded facts cannot constitute amendment which would warrant the finding of same being over-reaching. The failure of the court to consider issues of coverage of the evidence sought to be tendered by the pleadings tantamounts to a violation of appellants right to fair hearing and the appellants are denied the opportunity to present evidence in proof of their petition. Cases of Uzuda v. Ebigah (2009) All WLR, 122; Araka v. Ejeagwu (2000) 15 NWLR (Pt.692) 684, were among others, cited.

At the end of his submission, the learned SAN for the appellants urged this court to hold that the tribunal did not exercise its discretion judicially and judiciously having failed to base same on the facts and circumstances presented before it and that the decision of the Court of Appeal affirming the decision of the tribunal is itself perverse, unreasonable and liable to be set aside.

The learned SAN for the 1st respondent; the learned SAN for the 2nd respondent and the learned counsel for the 3rd – 5th respondents in their various briefs of argument show that they agreed that:—

the appellant, after the close of pleadings came up with an application seeking leave of court to file additional or further witness deposition outside the prescribed period provided by the Electoral Act for filing of election petition and for effecting amendment on matters relating to the substance or contents of the petition.

the application culminating into this appeal was a subtle attempt to amend and introduce new facts into the petition after the expiration of time for same;

a grant of the application would have over-reached the respondents irreparably;

the refusal of the appellants application by the tribunal flows from a judicial and judicious exercise of discretion which cannot be faulted.

no case is presented for interference with the exercise of discretion of the trial court as affirmed by the Court of Appeal;

the decisions of the two lower courts are concurrent and no justification for interference with same has been established by the appellants.

Each of the learned SANs and other counsel supported their submissions copiously by decided authorities and other statutory provisions. Each of them urged this court to dismiss the appeal and affirm the concurrent judgments of the two lower courts.

In the consideration of this appeal, I find it necessary to reproduce the application which gave birth to this appeal. The application was filed by the appellants as applicants before the trial tribunal on the 16th of January, 2013. It sought for the following reliefs:—

‘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.

AN ORDER of this Honourable Tribunal granting leave to the petitioner/applicants to call an additional witness, to wit; ‘A.E.O.’ whose statement/deposition on oath accompanies this motion.

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.

AN ORDER of this Honourable Tribunal deeming as property filed and served the further and additional witness statement on oath accompanying this motion. AND FOR SUCH FURTHER or other orders the Honourable Tribunal may deem fit to make in the circumstances.’

The grounds upon which the application was premised are as follows:

‘Some of the documents and other relevant facts needed in proof of the petition were not available to the petitioners at the time of filing.

The 3 respondent who has custody of the documents relevant to the petition has recently made certified true copies of some of them available to the petitioners.

Other relevant facts to the pleadings of the petitioners have also come to the knowledge and possession of the petitioners after the filing of this petition.

All the documents and facts referred to above would assist the Honourable Tribunal in the fair and just determination of the petition and the petitioners in ventilating their grievances.

That by the time the 3rd respondent made a comprehensive documents which the applicants applied for and which the applicants needed to prepare a comprehensive statement on oath, the time to file this statement on oath along with the petitioners reply had elapsed.

The final report of the expert commissioned to scientifically examine the Register of voters used for the election in order to determine if there was any unauthorized injection was recently received after the close of pleadings.’

Having considered the affidavit evidence and counsels addresses, placed before it, the trial tribunal, held, inter alia, as follows:-

“In the main, we hereby hold that this application is hereby unmeritorious as:

From the grounds of the application the applicants want to introduce fresh facts.

The time within which to effect substantial amendment to the petition has passed by effluxion of time.

Election petition being sui generis is guided by statute.

This application if granted will certainly overreach the respondent.

The application is hereby dismissed.’

In affirming the above decision, the court below, held as follows:-

‘Against this background and Tribunal saw this application has more to do with the amendment of the petition than for extension of time, the Tribunal was entitled to so do. It was quite in its enabling powers. But would the exercise of its discretion to treat the application as it did be said to have been done judicially and judiciously… in the instant case the tribunal in my view exercised its discretion judicially and judiciously because I believe that it adequately had before it sufficient materials on which it came to the conclusion that the prayer for extension of time was really meant to be for an amendment to the petition. It was also within, the competence of the Tribunal to believe as it did that any amendment to the petition would in the circumstance be substantial as to prejudice and overreach the respondent.’

Secondly, it is to be noted that this is an election matter and a petition on governorship election for that matter. The general principle of the law is that election matters are SUI GENERIS. They are limited by time span especially the gubernatorial one. They cannot withstand everlasting time span (ad infinitum). They must be concluded within a given time span in order to allow the winning candidate (governor-elect etc) assume his responsibilities of the office. He has a very limited number of years. Time lapse will seriously affect his term of office

The application is hereby dismissed.’

In affirming the ruling of the tribunal on this issue, the court below, per Gumel,

JCA, held as follows: ‘out of the 4 reliefs on the application of the appellants, one is for extension of time and 2 are for leave and the other main relief is for a deeming order, and if they were to be granted the appellants would have had their wish of bringing in additional evidence to be adduced through a new witness that was not contemplated to be a witness at the date of filing the petition. I have carefully read and considered all the grounds for this application, the supporting facts as well as the erudite arguments of respective learned counsel.

I observe that learned counsel to the appellants has heavily relied on paragraphs 3 – 7 and 9 – 10 of the affidavit in support to anchor his belief that if they were to be taken together they would clearly show that the first relief on the motion paper did not seek for any amendment to the petition but specifically for extension of time within which to file and make use of additional or further witness depositions. While it is correct that Order 43 Rule 4 of the Federal High Court Rules 2009 along with paragraph 45 of the 1st Schedule allow for extension of time within which to take a step in appropriate and deserving circumstances. Also Order 7 Rule 10(1) of the Court of Appeal Rules with paragraph 45 of 1st Schedule also allow for extension of time to be granted. A court may enlarge time for the doing of anything to which the rules apply. It is within the discretionary power of a court to grant or refuse a prayer for extension of time. Like all discretions, this too must be exercised judicially and judiciously.

An applicant who seeks for an order for extension of time availed it by the rules of court to take certain steps must explain satisfactorily to the court why those steps were not taken within the time stipulated for the taking of those steps. A party seeking for extension of time must give good and substantial reasons for the delay in filing the process within the prescribed time frame as the court does not exercise its discretion as a matter of course. In the instant appeal both the grounds for the application and paragraphs of the affidavit have generously set out the need for extension of time has arisen and the reasons why this application ought to have been granted, the lower court saw beyond the mere words of the application and declined to grant it. This refusal to grant the application arose from the belief of the Tribunal that prayer one was a surreptitious attempt by the petitioners/applicants to effect a substantial amendment of the petition outside the period the law allows for such a fundamental and monumental endeavour. The tribunal was of the further view that granting the application as prayed would only overreach and prejudice the respondents.

In refusing the application, the Tribunal was exercising its discretion upon its understanding of the materials placed before it. It is correct, and I fully agree with learned counsel to the petitioners/applicants, that there were enough materials to consider in deciding whether or not to grant extension of time. However, the tribunal, while considering those materials saw it necessary to be mindful of the prayers against which those materials were placed before it. Against this background the Tribunal saw this application as more to do with the amendment of the petition than for extension of time. The Tribunal was entitled to so do. It was quite within its enabling powers. But could the exercise of its discretion to treat the application as it did be said to have been done judicially and judiciously.

In the instant case the Tribunal in my view exercised its discretion judicially and judiciously because I believe that it adequately had before it sufficient materials on which it came to the conclusion that the prayer for extension of time was really meant to be for an amendment to the petition. It was also within, the competence of the Tribunal to believe as it did that any amendment to the petition would in the circumstance be substantial as to prejudice and overreach the respondents. I have taken time to consider and review the entire circumstance of this matter and I found no reason to see the decision of the Tribunal as being perverse or unreasonable. I am also unable to interfere with the exercise of the discretion of the tribunal. Issues one and two in the appellants issues for determination are therefore hereby resolved in favour of the respondents.’

My noble lords, do I need to add anything on the above lucid and comprehensive decisions of the two lower courts? Indeed I do not have to as I am full of satisfaction that both lower courts have done the right thing.

Perhaps the only thing I may add is that the application placed before the Tribunal was, I think, an after-thought. It was orchestrated certainly with a view to over-reach. If there was an evidence which was fundamental to the determination of the petition, that evidence ought to have been placed willy-nilly before the tribunal within the time limit specified by the Electoral Act or any other Act. That evidence ought to be regarded as the spinal cord of the petition. Even if it was being withheld by any person, there are several ways to go about placing same before the tribunal. The Evidence Act is very clear on this. The petitioners ought to have resorted to that procedure. It was never done. I am in tandem with the learned SANs for the 1st and 2nd respondents in their submissions that the ground upon which the petitioners wanted to bring in facts that were not available to them at the time of filing the petition, is an admission by the petitioners that it was an attempt by them to introduce new facts which were not available at the time of filing the petition. This clearly offends the provision of paragraph 14(2)(a) and (b) of the Act referred to earlier. This is irrespective of the mode the petitioners/applicants approached the court: whether for extension of time to do an act or for an amendment to the petition, the result is one and the same. It must have impact on the petition. The refusal of the application by the two courts is quite justified. I am in total agreement with the concurrent decisions thereof which I affirm. The appeal is hereby dismissed as it lacks merit.

I shall now consider the cross-appeal. But before I do that, I think there is need for me to look at the relief(s) being sought by the cross-appellant. In his Notice of Cross-Appeal (although inadvertently titled ‘Notice of Appeal’) (pages 1945 – 1948 Vol.III), the cross-appellant in paragraph 4 thereof, urges the Supreme Court to grant ‘an order allowing the appeal by affirming the decision of the Governorship Election Tribunal Holden at Akure….’

Equally, in his brief of argument, the cross-appellant (pages 21 thereof) urges this court ‘to resolve the issues formulated herein in favour of the cross-appellant and set aside the Court of Appeal restoration of paragraphs….. and to dismiss the petition as sought in the Notice of Cross-Appeal.’

One single question which is lingering in my mind is: granted that I allow the cross-appeal on its merit and set aside that part of the court belows judgment complained of by the cross-appellant, and affirm the decision of the tribunal on the paragraphs struck out, of what tangible benefit shall that be to the cross-appellant? Would it change the current position of the cross-appellant as the incumbent Governor of Ondo State? One thing with the courts is that no court of law will knowingly act in vein. See: Oladipo v. Oyelami (1989) 5 NWLR (Pt. 120) 221.

Thus, consideration of this cross-appeal will, in my view, become academic, cosmetic and of no utilitarian value or benefit as the aim of the cross-appeal has already been met by the earlier decisions of the trial court and of course that of the court below. I shall therefore refuse to consider the cross-appeal.

It is a principle of law long settled that the general attitude of the courts of law is that they are loathe in making pronouncements on academic/hypothetical issues as it does not serve any useful purpose. See: Ukejianva v. Uchendu (1950) 13 WACA 45; Nkwocha v. Gov. of Anambra State (1984) 1 SCNLR 634; Eperokun v. University of Lagos (1986) 4 NWLR (Pt.34) 162.

The cross-appeal is hereby struck out by me.

In the final analysis, I order each of the parties to bear his/its own costs in the main appeal and in the Cross-appeal.

SC. 153/2013