Congress For Progressive Change V. Independent National Electoral Commission (INEC) & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISA AYO SALAMI, J.C.A. PCA, OFR (Delivering the Lead Ruling)

By a Motion on Notice dated and filed on 18th day of May, 2011, the 3rd and 4th Respondents to Petition No. C/A/EPT/PRES/11 through their leading Counsel Chief Wole Olanipekun, SAN filed an application for an order directing the Petitioners to give/furnish Further Particulars in relation to named paragraphs of the Petitioner’s Petition dated and filed on 8/5/2011. The said application was brought pursuant to paragraphs 5, 17 and 54 of the 1st Schedule to the Electoral Act 2010 (As Amended) and Order 13 Rules 5 and 7 of the Federal High Court (Civil Procedure) Rules 2009.

The Further and/or Better Particulars requested for by the 3rd and 4th Respondents/Applicants relate to Paragraphs 12, 14(a), 14(b), 14(c), 4th Respondents/Applicants relate to Paragraphs 12, 14(a), 14(b), 14(c), 14(d), 14d(i)(a), 14d(i)(b), 14(d)(ii), 14(d)(iii), 14(d)(iv), 1a(d)(v), 1a(d)(vi), 14(d)(vii), 14(d)(viii), 14(d)(ix), 14(d)(x), 14(d)(xi), 14(d)(xii), 14(e), 14(0, 14(g), 14(h), 14(i), 140), 14(k), 14(k)(a),(b), 14(1), 14(m), 14(n)(a), 14(n)(b), 18, 19, 20, 28(a), 28(b)&(c ),(d),(e),28 (Imo State)(a), 28 (Imo State) (b),(c ), (d), 30(c ),(d) 31,32,33(a), 33(b), 33 (Taraba State), 33 (Jigawa State (b).

The said 3rd and 4th Respondents/Applicants Motion on Notice is supported by a 7 Paragraph Affidavit sworn to by Kenneth Omoruan, a Counsel in the Law Firm of Alex A. Izinyon (SAN) & Co.

In reaction to the above position of the Respondents/Applicants, Learned Senior Counsel for 3rd the and 4th Petitioner Chief Ebun Sofunde (SAN) also filed a 7 paragraph Counter Affidavit dated and filed on 22/5/2011 sworn to by one Yusuf Salihu the National Organizing Secretary of the Congress for Progressive Change.

In support of their different positions, Learned Senior Counsel for the 3rd and 4th Respondents/Applicants filed a Written Address dated 18/5/2011 and filed on 20/5/2011. The Learned Senior Counsel for the petitioner on the other hand filed a Written Address dated 20/5/2011 in support of the Counter Affidavit to the Motion of the 3rd and 4th Respondents filed on 18th May, 2011.

On Tuesday the 24th day of May, 2011, Chief Wole Olanipekun SAN leading Senior Counsel to the 3rd and 4th Respondents/Applicants moved the said Application. He relied on all the 7 paragraphs of the Applicants’ Affidavit. He also adopted and relied on his Written Address in support of the application. His prayer that the Prayers in support of the application of 18/5/2011 for further and better particulars be granted was supported by Dr. O. Ikpeazu SAN, of Counsel to the 1st 2nd, 6th-42nd Respondents and also by Chief Kyari Gadzama SAN of Counsel to the 5th Respondent, the latter having withdrawn a similar application dated 22/5/2011 and filed on 23/5/2011 so that he could be bound by the decision of Court in the present application.

Chief Ebun Sofunde (SAN) the leading Senior Counsel for the petitioner/Respondent also relied on his 7 Paragraph Counter-Affidavit. He also adopted and relied on the Written Address in support of the Counter-Affidavit.

The sole issue formulated for determination by the 3rd and 4th Respondents/Applicants is: –

“Whether this Honourable Court has the powers to grant this application.”

Similarly, the Petitioner/Respondent formulated a lone issue as follows:-

“Whether the Applicants are entitled to the relief sought in their Motion Paper in the circumstances of this Petition.”

On the sole issue for determination, Learned Senior Counsel for the 3rd and 4th Respondents/Applicants referred in particular to paragraph 4 of the Affidavit in support of their motion which deposed to the fact that certain allegations raised in the Petition were general, vague and at large and that the request for Further and Better Particulars from the petitioner is to ensure fair and proper hearing of the Petition.

Learned Senior Counsel for the Applicants referred to the provisions of paragraphs 5 and 17 of the 1st Schedule to the Electoral Act, 2010 (as amended) and emphasized that the 3rd and 4th Respondents/Applicants have not joined issues with the petitioner/Respondent with regards to the 46 paragraphs outlined in the Applicant’s motion. That the principles behind asking the Petitioner to furnish the Applicants with Further and Better Particulars is to prevent the petitioner/Respondent from springing surprise on the 3rd and 4th Respondents/Applicants. And, that the facts in the aforementioned paragraphs of the Petition pleaded by the Petitioner/Respondent have not sufficiently informed the Applicants of the issues in dispute. Learned Senior Counsel referred to the case of ABUBAKAR v. YAR’ADUA (2008) 4 NWLR (Pt. 1078) p. 465 at 503-504.