Hon. Dimeji Muse Awojobi & Anor. V. Independent National Electoral & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

I.M.M. SAULAWA, J.C.A. (Delivering the Leading Judgment)

The present appeal is against the ruling of the National Assembly/Legislative House Election Petition Tribunal, holden at Lagos on September 30, 2011 in petition No. NA/LEGH/EPT/L/3/2011. By the said ruling, the lower tribunal dismissed the Appellants’ petition for being incompetent, on the grounds that the scores of the candidates at the election were not stated in the petition, and that the Appellants had failed to apply for issuance of a pre-hearing notice within the statutory stipulated time limit.

FACTS AND CIRCUMSTANCES LEADING TO THE APPEAL

The facts and circumstances giving rise to the appeal are discernible from the record of appeal, transmitted to this court on October 28, 2011. By virtue of the Appellants’ pleadings, averred in the petition thereof, contained at pages 1 – 37 of the Records, an election was held by the 1st Respondent on April 9, 2011 for Oshodi/Isolo 02 Federal constituency, Lagos State. A total of thirteen candidates had allegedly participated in the said election. At the conclusion of which the 2nd Respondent, who contested under the platform of the 3rd Respondent, was declared the winner. However, the 1st Appellant was allegedly unlawfully excluded, though validly nominated, from the election in question. The Appellants reacted to the purported exclusion of the 1st Appellant from the election by filing the petition (No.NA/LEGH/EPT/L/3/2011) on April 29, 2011, thereby praying the lower Tribunal for the following reliefs:

a. That it may be determined that the said … (2nd Respondent) was not duly elected or returned as the member representing Oshodi/Isolo – 02 Federal Constituency in the National Assembly Election held on 9th April 2011 and or,

b. That the National Assembly for Oshodi/Isolo – 02 Federal Constituency Lagos held on 9th April 2011 be cancelled and or nullified, and fresh election ordered.

On May 11, 2011 and June 7, 2011, memoranda of appearance were filed in the lower Tribunal on behalf of the 1st and 2nd & 3rd Respondents by the respective counsel thereof.

On 08/6/11, a notice of preliminary objection, dated 06/6/11, was filed by Dr. Muiz Banire, of 2nd and 3rd Respondents’ counsel, praying the lower Tribunal to dismiss the petition on the ground that it’s incompetent, thereby robbing the Tribunal of jurisdiction to entertain the action. The preliminary objection was predicated upon the grounds that –

(1) The petitioners failed to state the ground on which the petition is based as required by paragraph 4(1) of the First Schedule to the electoral Act, 2010.

(2) The petitioners failed to state the scores of the candidates as required by paragraph 4(1) of the First Schedule to the Electoral Act, 2010.

On 30/09/11, upon the conclusion of the hearing of the learned counsel’s argument on the preliminary objection, the lower Tribunal delivered a ruling to the conclusive effect thus:

The petitioners’ motion filed on 4/8/2011 praying this Tribunal to strike out the 2nd – 3rd Respondents reply and preliminary objection to this petition fails, and is hereby dismissed.

The second prayer in the 2nd – 3rd Respondents’ motion of 26/7/2011, that the petition be dismissed, for failure by the petitioners to issue pre-hearing notice as required by paragraph 18(1) of the first Schedule to the electoral Act 2010 (as amended) succeeds and is hereby granted.

Similarly, the second prayer in the 2nd – 3rd Respondents’ motion filed on 8/6/2011, that the petition be dismissed, for failure by the petitioners to state the scores of the candidates as required by paragraph 4(1) of the first schedule of the Electoral Act 2010 (as amended) succeeds and is hereby granted.