Comrade Adams Aliyu Oshiomole V. Charles Ehigie Airhiavbere Maj, Gen (Rtd) & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C

On the 14th day of July 2012 gubernatorial elections were held in Edo State, The appellant was the candidate for the Action Congress of Nigeria, while the 1st respondent was the candidate for the Peoples Democratic Party, Five other Political Parties and their candidates participated of the elections, but they are of no relevance to the issues in this appeal. At the conclusion of the elections the 3rd respondent, the regulatory body charged with the conduct of elections in Nigeria declared the appellant the winner after he was adjudged to have scored 477,478 votes as against the 1st respondent who scored 144,235 votes. The 1st respondent was not satisfied with the declaration, and so he filed a petition challenging the election and return of the appellant as the Governor of Edo State of Nigeria.

The appellant (1st respondent of the trial tribunal) and the 3rd to 5th respondents raised preliminary objections to the hearing of the petition. The thrust of the objections were that;

(a) the tribunal lacks jurisdiction to hear the petition and grant the reliefs claimed;

(b) the petition disclosed no reasonable cause of action,

(c) the petition is academic, vague and hypothetical.

After hearing counsel, the tribunal delivered a considered Ruling on the 27th day of September 2012. The concluding paragraph of the Ruling reads:

“The two applications by the 1st and 3rd-5th respondents succeeds in part. Paragraphs 12 (iv), 13 (i) and (ii), 23, 24, 25 and 30 (i) and (2) are struck out from the petition. The petition is allowed to proceed to hearing on the merit with the remaining surviving paragraphs and the 4th and 5th respondents as parties to the petition.

Dissatisfied with the striking out of several paragraphs of his petition the petitioner/1st respondent lodged on appeal in the Benin Division of the Court of Appeal. That court in its judgment delivered on the 15th day of November, 2012 upset the judgment of the tribunal in these words:

“… it is hereby ordered that paragraphs 12(iv), 13(i) and (ii), 23, 24, 25 and 30(i) and 30(2) of the petition be and are hereby restored… “I hereby order that the petition be remitted back to the lower tribunal to be heard by another panel to be constituted by the Acting President of this court, Appeal allowed in part. No order as to costs.”

This appeal is against that judgment. Briefs of argument were duly filed and exchanged by counsel.

In the appellants brief filed on the 23rd of November 2012 three issues were formulated for determination of this appeal. They are;

1. Considering the pleadings of the 1st respondent (as Petitioner) particularly the sole ground of the petition, the vague facts pleaded thereon and the reliefs thereunder whether the lower court was not in grave error in upturning the judgment/ruling of the trial election tribunal by restoring the paragraphs of the petition struck out by the said tribunal, including the reliefs.
2. Whether the lower court was not altogether wrong in its making use of paragraph 9 of the 1st respondents reply to the appellants reply (to the 1st respondent’s petition) in restoring the struck out paragraphs of the petition by the trial tribunal.
3. Considering the clear provisions of section 31 (4) (5) and (6) of the Electoral Act 2010 (as amended), read together with the pleadings of the petitioner, whether the lower court did not fall into a serious error in holding that the trial election petition tribunal has jurisdiction to adjudicate on the purported issue of disqualification of the appellant.

Learned counsel for the 1st respondent also formulated three issues for consideration. They are:

1. Whether the lower court was right when it held that the Governorship Election Tribunal has jurisdiction to hear and determine the issue of qualification or non-qualification of the appellant to contest the Governorship Election held in Edo State on 14th July, 2012 as formulated in 1st Respondent’s petition.
2. Whether or not the lower court was right in restoring the paragraphs of the petition struck out by the trial tribunal.
3. Whether the lower court reference to paragraph 9 of the 1st respondents reply to the appellants reply to the petition occasioned perversion of justice.

Learned counsel for the 2nd respondent did not file a Brief.