Ekiti State Independent Electoral Commission & Ors. V. Peoples Democratic Party (PDP) & Anor. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UCHECHUKWU ONYEMENAM, J.C.A., (Delivering the Leading Judgment)

This appeal is against the decision of High Court of Justice of Ekiti State sitting at Ado-Ekiti, delivered on 2nd February, 2012 in Suit No.: HAD/196/2011. In the judgment contained at pages 196 – 218 of the record, the learned trial Judge resolved all the issues formulated in favour of the Respondents as claimants at the lower court. All reliefs were equally granted as sought in the Originating Summons.

Dissatisfied with the decision, the Appellants initiated this appeal by filing a Notice of Appeal on 3rd February, 2012 which contained 3 grounds of appeal. See pages 217 to 219. Additional grounds of appeal containing 6 grounds were deemed filed and served on 23rd May, 2012 by the order of this court.

The facts as relevant to this appeal are that, the Respondents herein commenced an action at the lower court by an Originating Summons dated and filed 28th September, 2011. The Summons, the supporting affidavit, the written address and the accompanied documents are found at pages 1-48 of the record. The Appellants upon receipt of the Originating processes filed a counter-affidavit of 7 paragraphs with a written address.

See pages 122-132 of the record. Thereafter the Respondents filed a reply to the counter affidavit and attached several documents. See pages 138 -148 of the record. The Appellants also reacted to the reply to the counter-affidavit by filing a further counter affidavit with several documents attached. See pages 163 -176 of the record. Also filed was a further reply to further counter affidavit. See pages 177 – 181 of the record.

Consequent upon the nullification of the election of Engr. Segun Oni as Governor of Ekiti State on 15th October, 2010 and the swearing in of Dr. Kayode Fayemi as the Governor in his place; the latter by a press release issued on 29th October, 2010 and signed by his Senior Special Assistant Media dissolved all the boards of parastatals in Ekiti State including the Ekiti State Independent Electoral Commission.

On 7th and 14th June, 2011, the 7th Appellant appointed the 2nd – 6th Appellants as members and chairman of the 1st Appellant respectively, after they had been screened and confirmed by the 9th Appellant. The Respondents had contended at the lower court that the 2nd – 6th Appellants were ineligible to be members and chairman of the 9th Appellant as they were card carrying members or sympathizers of registered political parties.

In all the Respondents in support of their averments attached 5 documents marked as Exhibits A, B, C, D and E. Exhibits A, B, C and D are photocopies of alleged curriculum vitae of the 2nd – 6th Appellants respectively. Exhibits E is a photocopy of a letter written by Respondents’ solicitors to the clerk of 9th Appellant. On their own the Appellants attached 5 Exhibits namely, Exhibits EK1 , EK2, EK3 , EK4 and EK5. Exhibits EK1, EK2 and EK3 are certified true copies of curriculum vitae of 2nd, 4th and 5th Appellants. Exhibit EK4 is the resignation letter of 6th Appellant and Exhibit EK5 – letter from the Respondents on the issue of local government election.

Upon the grounds and additional grounds of appeal, parties in accordance with the rules of this court exchanged their briefs and formulated their respective issues.

Both parties distilled 5 issues respectively for the hearing and determination of the appeal. The Appellants’ 5 issues are as set out hereunder:

1. “Whether the learned trial Judge was not wrong by placing reliance on uncertified public documents attached to the Affidavit in support of the Originating Summons and came to the conclusion that the 2nd to 6th Appellants were card carrying members or sympathizers of Registered Political parties, and whether the invocation of sections 89(1)(a), 90(1)(a) and 167(d) of the Evidence Act against the Appellants is justified and valid; having regard to the facts and circumstances of this case.
2. Whether the learned trial Judge was right when His lordship held that the provisions of Ekiti State Independent Electoral Commission Law that set out qualifications for members to be appointed to the 1st Appellant are inconsistent with the relevant provisions of the 1999 Constitution of the Federal Republic of Nigeria and whether the said Constitutional provision has covered the field in that respect.
3. Whether the learned trial Judge was not wrong when His lordship ignored the Certified True Copies of the curriculum vitae attached to the counter affidavit of the Appellants and preferred the uncertified photocopy of curriculum vitae attached to the Originating Summons to grant the declaratory reliefs sought by the Respondents.
4. Whether the learned trial Judge was correct by granting the declaratory reliefs sought by the Respondents, in the face of conflicting affidavit and documentary evidence placed before the court without resolving the conflicts by calling oral evidence.
5. Whether the action of the Respondents is not statute barred and liable to be dismissed having filed same outside three months from the time the cause of action accrued.”

The Respondents’ 5 issues are as follows:

1. “Whether the learned trial Judge was not right in holding Exhibits A, B, C &, D admissible in law and placing reliance on them, having regards to the clear provisions of sections 89(1)(a) and 90(1) of the Evidence Act, 2011.
2. Whether the learned trial Judge was not right in holding that paragraph 14(2) of the 3rd schedule of the 1999 Constitution (as amended) should be applicable to Ekiti State Independent Electoral Commission Law, 2001 having regards to the doctrine of covering the field.
3. Whether the learned trial Judge was not right in granting the declaratory reliefs on the strength of the Respondents’ uncertified true copies (Exhibit A, B, C, D and E) which he preferred as against the so called certified true copies, (Exhibits EK1 – EK3) attached to the Appellants counter – affidavit
4. Whether the learned trial Judge did not approach and consider the affidavit evidence and exhibit before him correctly before granting the declaratory reliefs in favour of the Respondents when there was no irreconcilable conflicts that could have warranted calling for oral evidence.
5. Whether the action of the Respondents is statute-barred and liable to be dismissed having not initiated same within three months from the date the cause of action rose (sic).”

On 23rd January, 2013 when the appeal came up for hearing learned counsel for the parties identified their respective briefs. Before the appeal was taken Mr. Obafemi Adewale drew the attention of the court to the Respondents’ preliminary objection to the appeal.

He referred to the grounds for the objection, the issue for determination and the argument on the issue as contained at pages 2 – 5 of the Respondents brief of argument. He urged the court to uphold the objection and to dismiss the appeal.

In response, the Appellants answered the Respondents’ preliminary objection at pages 2-9 of the Appellants’ reply brief. The Appellants urged the court to discountenance the preliminary objection and determine the appeal on the merit.