Hon. Bashir Adeyela V. Olajide Adeyeye & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment)

This is an appeal by the Appellant who was the Petitioner at the Governorship/National Assembly and Legislative Houses Election Petition Tribunal, Osun State, sitting at Oshogbo in Petition No. HA/EPT/OS/18/2007 against the judgment of the Tribunal Coram:- Honourable Justices T.D. Naron, S. Mohammed, J.N. Akpughunum, A. T. Badamosi, J. E. Ekanem, delivered on the 12th of May, 2008, wherein the Honourable Tribunal dismissed the petition as lacking in merit.

The facts leading up to this appeal are briefly set out as follows:-

“Elections were conducted into the Osun State House of Assembly on the 14th April, 2007. The Appellant, a member of the Action Congress (A.C.) contested the seat for Ife East Constituency. At the conclusion of the election, the 3rd to 9th Respondents declared the 1st Respondent who was the candidate of the Peoples Democratic Party (P.D.P.) as the winner. The Appellant was dissatisfied with the outcome of the election and filed a petition dated 14th May, 2007 before the tribunal, seeking the nullification of the said election and make an Order for a re-run of the said election for substantial non-compliance with the provisions of the Electoral Act. The Petitioner further pleads that, he contested the election on the platform of the Action Congress (A.C.) and has the right to be returned as having been duly elected.

The Appellant filed a Notice of Appeal dated the 30th of May, 2008 containing Twelve (12) Grounds of Appeal from which the Learned Counsel distilled Eight (8) issues for determination of the Court. The said Notice of Appeal was filed on the 7th of May, 2009. Learned Counsel to the 1st and 2nd Respondents in their Brief of Argument dated 14th May, 2009, filed on 15th May, 2009, incorporated a Notice of Preliminary Objection and formulated three (3) Issues for determination. Learned Counsel to the 98th and 99th Respondents in their Brief of Argument, deemed filed on the 9th of February, 2010 formulated one (1) Issue for determination.

When this appeal came up for hearing on the 9th of February, 2010, the learned Counsel to the 1st and 2nd Respondents, A.A. Abimbola, drew the attention of the Court to the Notice of Preliminary Objection contained in the 1st and 2nd Respondents’ Brief of Argument. Learned Counsel to the 1st and 2nd Respondents stated as follows:-

NOTICE OF PRELIMINARY OBJECTION:

“TAKE NOTICE that the 1st and 2nd Respondents hereby raise a Preliminary Objection, notice of which is hereby given to the Appellant and shall urge the Court to:-

Strike out Grounds 8, 9, 10, 11 and 12 of the Notice of Appeal filed on the 30th day of May, 2008 and issue 5 of the Appellant’s Brief of Argument purportedly distilled from the said Grounds of Appeal on the ground that the Grounds of Appeal and the issue purportedly, distilled therefrom are incompetent.

Assuming though not conceding that this Honourable Court can exercise jurisdiction on it that Grounds 8, 9, 10, 11 and 12 being grounds flowing from an interlocutory ruling, the Appellant ought to have filed his Notice of Appeal within 21 days or thereafter; with leave of this Honourable Court in compliance with the provisions of Section 1 of the Practice Direction No.2 of 2007.”

In arguing the Preliminary Objection, learned Counsel to the Applicant formulated One (1) Issue for determination by this Court, that is, whether this Court can assume jurisdiction in respect of Grounds 8, 9, 10, 11 and 12 of the Notice of Appeal filed by the Appellant dated 30th day of May, 2008 which bothers on interlocutory appeal. Learned Counsel to the Applicant submitted that, this Court is not clothed with the competence to entertain interlocutory appeals that arise from Election Petitions. Learned Counsel to the Applicant further submitted that, the Petitioner in the course of the trial of this petition, had brought several applications before the Tribunal, which the Tribunal by its unanimous Rulings, delivered on the 8th day of December, 2007 and 24th day of January, 2008; dismissed the applications as being incompetent. Learned Counsel to the Applicant submitted further that, Section 246 (1) of the Constitution of the Federal Republic of Nigeria, 1999, empowers the Court of Appeal to adjudicate on matters. These constitutional provisions did not in any way, make provisions for interlocutory appeals from the decision of Election Petition Tribunals. It provided for only final appeal which is as of right, pursuant to Section 246 (1) of the Constitution of Nigeria, 1999. See:- Amgbare Vs. Sylva (2007) 18 NWLR (Part 1065) 1 At 19. Also, Dr. Maxwell M. Gidado & Another Vs. Mrs. Grace Folashade Jackson Bent and 12 Others (unreported Appeal No. CA/I/EPT/SN/237M/2007).

Learned Counsel to the Applicant further submitted that, if this Court has power to entertain such interlocutory decision on appeal, the appeal in respect of it was not brought within the time allowed by the Election Petitions Practice Direction No. 2 of 2007. The Rules stipulate 21 days within which to file a Notice of Appeal challenging an interlocutory decision.

Learned Counsel to the Applicant further submitted that, a careful look at the Grounds 8, 9, 10, 11 and 12 revealed that, the Appellant rather than filing separate Notice of Appeal after the Ruling of the Tribunal dated 8th December, 2007 and 24th January, 2008, chose to embed in the Notice of Appeal against the final decisions of the Election Petition Tribunal, delivered on the 12th day of May, 2008 – a period of close to five months after the Ruling being appealed against was delivered. The interlocutory appeal on interlocutory issues having not been filed within the time allowed by law is incompetent and should be struck out.

Learned Counsel to the Applicant submitted further that Issue Five (5) distilled from Grounds 8, 9, 10, 11 and 12 of the Grounds of Appeal, is an issue distilled from incompetent grounds of appeal; such issue is also crippled with in competency which affected the Grounds of Appeal. See:- Agbaka Vs. Amadi (1998) 11 NWLR (Part 572) 16 At 24. Learned Counsel to the Applicant submitted further that, if this Court finds the submission made otherwise, it was simply an exercise of Court’s discretion. Where it involves the exercise of judicial discretion, only the Court exercising the discretion can hint itself. Discretion by Court depends on the facts and peculiarity of each case as discretion in a case has no force of binding even in the same Court. See:- Yusuf Vs. Ilori (2008) 6 NWLR (Part 1083).