Dr. Imoro Kubor & Anor V. Hon. Seriake Henry Dickson & 2 Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LADAN TSAMIYA, J.C.A. (Delivering the Leading Judgment)

On February 11, 2012, the Independent National Electoral Commission (INEC) (herein referred to as the 3rd Respondent) conducted the election for the office of Governor of Bayelsa State. The 1st Respondent was sponsored by the 2nd respondent as its candidate at the said election while the 1st appellant was sponsored by the 2nd appellant. Other political parties also fielded their respective candidates in the election. At the end of the election the 1st respondent was declared winner and returned elected.

The appellants being not satisfied with declaration and return of the 1st respondent, filed their petition challenging the said declaration and return of the 1st respondent by the 3rd respondent. The Governorship Election Tribunal (herein referred to as the Tribunal) heard the petition and in its judgment, delivered on July 11th 2012, dismissed the petition in its entirety. This appeal is against the judgment of the Tribunal.

The parties to this appeal filed and exchanged their briefs of argument. The 1st and 2nd respondents respectively filed a notice of preliminary objections against some aspects of the appeal. Before dealing with the issues raised by the respective parties in this appeal, I shall first consider the preliminary objections raised by the respondents. This is because these are threshold issues. A challenge to the competence of a ground of appeal is a fundamental point of law. If the ground of appeal is incompetent then the court has no jurisdiction to entertain it and as such it will be struck out.

Having made the above statement, I shall now take the liberty to state down the submissions of the 1st and 2nd respondents relating to each of the grounds challenged with a view to demonstrating the reason or reasons why they should be or not struck out. First the 1st respondent, in his written address accompanying his preliminary objection contended that by a community reading of the provisions of order 6 rule 2 (2) and (3) of the Court of Appeal Rules 2011, aground of appeal must be one of the three categories, namely, alleging a misdirection or error in law or an omnibus ground i.e. alleging that the judgment of the lower court is against the weight of evidence. He further submitted that grounds 3-9 of the appellants, notice of appeal filed on 28/7/2012 do not allege a misdirection or error in law, and that non of these grounds is an omnibus/general ground.

Therefore, these grounds are contrary to Order 6 rule 2 (2) and (3) of the Court of Appeal Rules 2011, and are vague and disclose no reasonable ground of appeal. That having failed to allege a misdirection or error in law and are vague they ought to be struck out, for being incompetent. In support of this submission some legal authorities were referred to us, and he urged us to strike out the said grounds of appeal.

Also challenged are the particulars of ground 3 to the effect that they are not related to the ground of appeal. He submitted that the particulars of the said ground 3 bear no harmony and are not complementary to the ground of appeal and that being so, he urged this court to strike out the said ground 3 for being incompetent.

The 1st respondent also challenged ground 4 of the Notice of appeal. His main contention is that, the said ground 4 relates to a pre-election affair of 2nd respondent because it complains against the nomination and sponsorship of the 1st respondent by his party, 2nd respondent. He further contended that nomination and sponsorship of a candidate to contest an election are matters over which the tribunal has no jurisdiction and as this appellate court exercises jurisdiction over the decision of the lower tribunal, this court therefore can only exercise its jurisdiction over matters on which the tribunal has jurisdiction. That since the election tribunal had no jurisdiction over pre-election matters, moreso, an intra-party dispute, this court cannot exercise its jurisdiction over such matters because they are not justifiable. He urged this court to strike out that ground 4 of the notice of appeal. He cited also some legal authorities to support his contention on this issue.

On ground 7 of the notice of appeal, the 1st respondent’s objection against it is that it alleges an error in law and misdirection on facts at the same time. He submitted that for a ground of appeal to allege error in law and misdirection on facts at the same time such ground is incompetent and he urged the court to hold so and strike it out.

On ground 8 and 9 of the notice of appeal, the 1st respondent’s objection is that the two grounds lacked particulars to support them, and this is in violation of Order 6 rule 2(2) of the Court of Appeal Rules 2011. He also alleged that the two grounds are narrative and contain arguments, which, so doing is contrary to the provisions of Order 6 rule 2 (3) of same. He urged this court to strike out the said two grounds for being incompetent and cited legal decision to support his contention on this point.

In the final, and in the light of the foregoing; he urged this court to strike out the said grounds 3-9 of the notice of appeal.

The preliminary objection of the 2nd respondent as it relates to grounds 1- and 7 of the notice of appeal. The objection was predicated on three (3) grounds as follows:

(a)That grounds 1 and 7 of the notice of appeal do not arise from the judgment appealed against and therefore cannot be raised and argued without the prior leave of this Honourable Court;

(b)That the said grounds 1 and 7 constitute a fresh point and are incompetent having been raised without the prior leave of this court;