Dr. Wale Okediran V. Agboola Hosea Ayoola & 2 Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment)

The National and State Houses of Assembly Election Tribunal (the lower Tribunal) sitting at Ibadan in Oyo State of Nigeria dismissed the petition of the appellant on 26.7.2011, on a preliminary objection that he did not apply for the issuance of pre-hearing notice within 7 days of pleadings as required by paragraph 18 (1) of the First Schedule to the Electoral Act, 2010, as amended, hence this appeal.

A resume of the facts from the printed record of appeal (the record) disclosed the following. The appellant was sponsored by the Congress of Nigeria (A.C.N.) political party as a contestant senatorial seat of the Oyo North Senatorial district in the general election held on 9.4.2011. The scores recorded by the 3rd respondent, the Independent National Electoral commission (INEC), indicated 94,896 votes for the appellant and 133, 143 votes for the 1st respondent of the Peoples Democratic Party (PDP), the 2nd respondent. Six others candidates lesser scores than the appellant and the 1st respondent also contested the election.

Dissatisfied with the outcome of the election, the appellant presented a petition against it at the lower Tribunal on 30.4.2011, on the triple grounds that:

“6.01 The 1st Respondent was not validly sponsored by the 2nd respondent in accordance with section 65 (2) (b) and 228 of the 1999 constitution (as amended and therefore not qualified to contest the said election.

6.02 The 1st Respondent was not duly elected by majority of lawful votes cast at the said election.

6.03 There was substantial non-compliance with the provisions of the Electoral Act 2010 as amended which invalidates the said election”.

After the parties filed and exchanged their respective pleadings (petition and replies), the 1st respondent brought a motion on notice dated and filed on 7.7.2011, for dismissal of the petition on the grouse that appellant had abandoned the petition by his failure to apply for pre-hearing notice after the service of his reply to 1st respondent’s reply respondent. The motion was fixed by the lower Tribunal for hearing on the same 7.7.2011. Appellant’s learned senior counsel sought for and obtained an adjournment of the motion to 14.7.2011 to react to it.

The motion was argued on 14.7.2011, in the course of which 1st respondent orally replied on points of law to the written submissions of the appellant. The lower Tribunal comprising a chairman and two members (Nwizu, J. (chairman), Hon. Kadi Alkali (member) and Ajileye, J. (member) gave a considered ruling read by Ajileye, J. (member), upholding the preliminary objection of the 1st respondent and dismissing the petition as abandoned under paragraph 18 (1) (3) and (4) of the First schedule to the Electoral Act (First schedule).

In an amended notice of appeal dated and filed on 29.8.2011, but deemed duly fifed by leave of the court on 12.9.2011, the appellant raised sixteen grounds of appeals. Stripped of their particulars, the said grounds of appeal read

“(i) The learned members of the Lower Tribunal erred in law and acted without jurisdiction when all the three members heard the 1st Respondent’s application a ruled thereon jointly.

(ii) The learned Justice of the Lower Tribunal erred in law when they allowed the 1st Respondent’s solicitor to reply orally on points of law to the written address of the Appellant and thereby acted without jurisdiction.

(iii) The learned Justices of the Lower Tribunal erred in law when they relied on the oral address of the 1st Respondent to dismiss his objection to the competence of the 1st Respondent’s application dated 7th July, 2011.

(iv) The learned justice of the lower tribunal erred in when it held thus: