Dr. Olusegun Agagu & Ors V. Rahman Olusegun Mimiko & Ors (2009)

LawGlobal-Hub Lead Judgment Report

UMAR FARUK ABDULLAHI, J.C.A.

The Governorship/Legislative Election Tribunal in Akure, Ondo State (Coram G.N. Nabaruma, Chairman, A.E. Okon, D.I. Okungbowa, M.B Goji and A.S Umar JJ, members), delivered its judgment on the 25th day of July, 2008, wherein it declared the Petitioner, Dr. Rahman Olusegun Mimiko as the duly elected Governor of Ondo State of Nigeria, being the candidate that scored the highest number of valid votes cast at the 14th April, 2007 Governorship election. The first, second, third, fourteenth, fifteenth and sixteenth Respondents being dissatisfied have separately appealed to this court.

The petition culminating in this appeal was brought on 14th May, 2007 against the election of Dr. Olusegun Agagu who had contested the Governorship election in Ondo State on the platform of the Peoples Democratic Party and was the first Respondent at the Tribunal.

The Petitioner, Dr. Rahman Olusegun Mimiko, was the candidate of the Labour Party and first Respondent herein, Dr. Olusegun Agagu filed his reply to the Petition on 13th June, 2007 thereby joining issues with the Petitioner. The fifteenth and sixteenth Respondents equally joined issues with the Petitioner on 6th June, 2007. The second as well as the third to fourteenth Respondents failed to file their respective replies to the Petition. The application for enlargement of time to file their replies was refused. Seventeenth and eighteenth Respondents neither filed a reply nor participated in the proceedings. The second, third to fourteenth Respondents as well as the fifteenth and sixteenth Respondents informed the Tribunal that they had no evidence to proffer. The fifteenth and sixteenth Respondents thereby completely abandoned their reply to the petition.

At the hearing of the appeal, Prince Lateef Fagbemi, learned senior counsel for Dr. Olusegun Agagu adopted both the Appellant’s brief and Appellant’s reply brief. He briefly elucidated upon the briefs. In the second appeal filed by the 2nd Respondent in the Petition, Alhaji Abdullahi Ibrahim (SAN) adopted and elucidated on its Appellant’s brief and the Appellant’s reply brief. Mr. J.B. Daudu (SAN) adopted the Appellants’ briefs and reply briefs of the third to fourteenth Respondents to the Petition, who filed a substantive appeal and four interlocutory appeals. He elaborated on all the briefs. Mr. J.C.A. Idachaba, Esq., also adopted the Appellants’ brief and Appellants’ reply brief in the fourth and final substantive appeal filed by the fifteenth and sixteenth Respondents to the Petition. Chief Wole Olanipekun, learned senior counsel for the Petitioner, Rahman Olusegun Mimiko, adopted the first Respondent’s briefs to all the appeals, both substantive and interlocutory. Chief Wole Olanipekun (SAN) also filed notices of intention to rely on preliminary objections against some of the Grounds of Appeal in some of the notices of appeal filed on the ground of incompetence and he prayed that they should be struck out.

Dr. Olusegun Agagu filed 207 Grounds of Appeal in the Amended Notice of Appeal. The Grounds of Appeal sought to be struck out are Grounds 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 32, 33, 34, 35, 36, 37, 38, 39, 41, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 56, 58, 59, 60, 61, 71, 78, 79, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 109, 110, 113,114, 115, 116, 118, 119, 120, 121 ,123, 124, 125, 126, 129, 130, 132, 133, 134, 135, 136, 137, 138, 139, 142, 143, 153, 155, 158, 161, 168, 169, 171, 172, 173, 175, 178, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 196, 197, 199, 200 and 202.

The Grounds that survived the onslaught are – 1, 31, 40, 42, 54, 55, 57, 62, 63, 64, 65, 66, 67, 68, 70, 71, 73, 74, 75, 76, 77, 80, 67, 68, 70, 72, 73, 74, 75, 76, 77, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 107, 108, 111, 112, 127,128, 131, 140,141, 144, 145, 146, 147,148, 149, 150, 151, 152, 154, 156, 157, 159, 160, 162, 163, 164, 165, 166, 167, 170, 172, 176, 177, 179, 195, 198, 201, 203, 204, 205, 206 and 207.

The survivors in spite of the weeding are quite a mouthful.

I therefore agree with the learned senior counsel for the Respondent that the situation “is a study in prolixity”. However, the objection was not taken before the hearing of the appeal, even though it was canvassed or argued in the Petitioner/first Respondent’s brief of argument. It was taken after all the appeals had been argued. This omission can be traced directly to the multiplicity of appeals taken together, which provided learned senior counsel for Dr. Olusegun Agagu an escape route. The situation was founded on the Supreme Court decision in Lagga v. Sarhuna (2008) 16 NWLR (Pt 1114), 427 at 480 – 1. Counsel contended that the preliminary objection was abandoned or deemed abandoned having not been raised prior to the hearing of the appeal. It makes sense. It is to demonstrate the futility of bolting the stable after the horse had escaped. See also Offorkire & Anor vs Maduike & Others (2003) 5 NWLR (Pt.812) 166, 178 – 179;

The notice of preliminary objection can be given in the Respondent’s brief, but a party filing it, in the brief, must ask the Court for leave to move the notice of objection before the oral hearing of the appeal commences. Otherwise, it will be deemed to have been waived and therefore abandoned. In Nsirim v Nsirim (1990) 3 NWLR (Pt.138) 285 at 296 – 297 the Supreme Court, per Obaseki, JSC, stated as follows:

“The Respondent in the instant appeal has contended that although the objection was stated in the brief the Court was not moved at the oral hearing of the appeal to strike out the grounds for failure of particulars of errors. He therefore submitted that the Appellant herein should be taken to have abandoned the objection more so as it was not an issue for determination in the appeal before the Court of Appeal. In my opinion, there is substantial merit in the contention of the Respondent. Being a preliminary objection, the objection should have been by motion or notice before the hearing of the appeal so that arguments on it can be heard by the court- while notice of objection may be given in the brief, it does not dispense with the need for the Respondent to move the Court as the oral hearing for the relief prayed for. This preliminary objection not having been raised and argued at the oral hearing the Court of Appeal cannot be condemned as having erred in allowing the then Appellant (now Respondent) to argue his appeals.”

In the circumstances, all the preliminary objections concerning the Grounds of Appeal filed by all the Appellants are hereby disposed of.

Before going further, it will be necessary to consider the interlocutory appeals.

The second Respondent/Appellant as well as the third to fourteenth Respondents/Appellants failed to file replies to the Petition and have by their conduct or default admitted the averments in the Petition, which are left unchallenged, and uncontroverted or uncontradicted – see Haway vs Mediowa (2000) 13 NWLR (Pt 683) 77, United Nigeria Insurance Co. Ltd vs Universal Commercial & Industrial Co. Ltd (1999) 3 NWLR (Pt 593) 17, 25, Akibu v Oduntan (1992) 2 NWLR (Pt 222) 210 at 226. In such circumstance, the law does not require proof of impliedly admitted facts and where proof is even required, only a minimal evidence would be necessary to ground the claim – See Balogun vs. UBA (1992) 6 NWLR (Pt 247) 266, Egbunike vs. ACB (1995) 2 SCNJ 58, 78. With regard to the interlocutory appeal by INEC complaining of the refusal by the Tribunal to grant the extension of time sought to file their joint reply to the Petition, it is my view that even if it succeeds, it will be of no moment in this appeal because they led no evidence. After all, public policy demands that there should be an end to litigation.