Hon. Julius Oyebanji Akinremi V. Mr. Ipoola Binuyo & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Osun State Governorship and Legislative Houses of Assembly Election Petition Tribunal NO.1, sitting at Osogbo (hereinafter referred to as ‘the Tribunal’) delivered on 14th March 2008 dismissing the petition filed by the appellant (as petitioner) against the respondents.

The appellant contested the Ife North Local Government Constituency Seat at the Osun State House of Assembly Election held on 14th April, 2007 on the platform of the Peoples Democratic Party (PDP). The 1st respondent also contested the election on the platform of the Action Congress (AC). The 2nd – 4th respondents returned the 1st respondent as the winner of the election while the appellant came second. The appellant was dissatisfied with the result and on 14th May, 2007 filed a petition before the lower Tribunal seeking the following reliefs:

a. A declaration that the 1st respondent was not lawfully or duly returned at the election for reason that he did not score majority of lawful votes cast at the election.

b. A declaration that the election in Ife North State Constituency was marred with violence.

c. An order declaring the petitioner as the candidate that scored majority of lawful votes cast at the election held on the 14th April, 2007 or alternatively, an order directing the respondents to conduct a bye election in Ife North Constituency.

Pleadings were filed and exchanged, pre-hearing sessions were held and the petition went to trial whereat the appellant and the 1st respondent called witnesses and tendered documents. The 2nd – 37th respondents did not call any witness. Certain documents were produced and admitted in evidence through an electoral officer pursuant to a subpoena. At the conclusion of the trial, the Tribunal in a considered judgment delivered on 14th March, 2008 dismissed the petition. The appellant was dissatisfied with the decision and filed a notice of appeal dated 3rd April, 2008 and filed on 4th April, 2008 containing two grounds of appeal.

In compliance with the rules of this Court, the parties filed and exchanged their respective briefs of argument. The appellant’s brief settled by A. A. Abimbola Esq., is dated 18/8/08 and filed on 19/08/08. It was deemed filed on 1/6/09. The 1st respondent’s brief settled by T. A., Abdulwahab Esq., is dated and filed on 10/7/2009. It was deemed properly filed on 27/1/2010. The 2nd – 37th respondents’ brief was settled by Oghenero Ideh Esq. It is dated 30/10/09 and filed on 2/11/09 but deemed filed on 23/3/2010.

At the hearing of the appeal on 23rd March, 2010, learned counsel for the parties adopted and relied on their respective briefs of argument and urged their respective positions on the court. Mr. Abdulwahab drew the court’s attention to the preliminary objection raised and argued in the 1st respondent’s brief and urged the court to uphold the objection and strike out the appeal. Alternatively, he relied on the arguments advanced in the said brief in response to this appeal. The appellant did not file a response to the preliminary objection.

The appellant formulated two issues for the determination of the appeal as follows:

1. Whether on the face of evidence on record before the Tribunal the 1st respondent is not linked with acts of violence. (Ground 1)
2. Whether the Tribunal ought to find that the acts of violence in the 4 (four) wards substantially affected the outcome of the election. (Ground 2)

The 1st respondent adopted the issues formulated by the appellant. The 2nd – 37th respondents also formulated two issues for determination, which are substantially the same as those formulated by the appellant.

As the 1st respondent has raised a preliminary objection to the competence of the notice of appeal, the objection must be considered and resolved before delving into the merits of the appeal, if necessary.

The main complaint of the 1st respondent in the preliminary objection is that the notice of appeal at pages 473 – 476 of the record is incompetent because Tewo Lamuye Esq., the learned counsel who filed it represented the 2nd – 37th respondents (INEC and its officials) at the Tribunal. Mr. Abdulwahab observed that while Tewo Lamuye Esq. filed the notice of appeal on behalf of the firm of E.F. Ogunjuyigbe & Co., in an earlier appellant’s brief dated 16/7/08 and filed on 25/7/0S the said Tewo Lamuye Esq. presented Otunba Kalejaiye, SAN as his principal. He noted that Otunba Kalejaiye, SAN filed the petition before the Tribunal and conducted a substantial part of the trial. He argued that it is rather strange that a counsel in the firm of the petitioner’s counsel could have been assigned to represent the 2nd – 37th respondents who are constitutionally bound to oppose the petition. He referred to the record of proceedings at pages 367 – 372 where Tewo Lamuye Esq. held the brief of one E.F. Abbe Esq. for the 2nd – 37th respondents. He argued that it is immaterial that he was holding Mr. Abbe’s brief, as a counsel holding brief for another counsel stands in the position of the counsel whose brief he holds for all purposes. He relied on the case of: Peoples Redemption Party Vs INEC (2004) All FWLR(209) 1071. Learned counsel submitted that by virtue of Section 31 of the Court of Appeal Act Cap 75 Laws of the Federation of Nigeria (LFN) 1990 and Order 1 Rule 5 of the Court of Appeal Rules 2007, ‘appellant’ means any person who desires to appeal or appeals from the decision of the court below or who applies for leave to appeal and includes a legal practitioner representing such a person in that behalf. He argued that Tewo Lamuye Esq., having represented the 2nd – 37th respondents at the Tribunal would not have been envisaged as a proper person to come within the definition of an appellant as statutorily defined. He referred to: Ngige Vs Obi (2006) 14 NWLR (999) 1 at 197.

He submitted that a court would interfere with a litigant’s right to counsel of his choice in a situation where Counsel appears for one party at an early stage of the transaction and then turns around at a later stage to appear for his opponent. He relied on: Ikpana Vs Registered Trustees, P.C.N. (2006) All FWLR (310) 1703 at 1720 C. He argued that an appeal is a continuation of the original case and a party (including his counsel) is confined to the case pleaded in the court of first instance and cannot make a different case on appeal. He relied on: Onyeke Vs Harriclem Nig. Ltd. (1998) 7 NWLR (536) 64; Anatogu Vs Iweka (1995) 8 NWLR (415) 547. He submitted further that by purporting to represent the appellant, the learned counsel’s action is unprofessional and a violation of Rule 10 of the Rules of Professional Conduct in the Legal Profession. He urged the court to hold that there are sufficient reasons to strike out the notice of appeal pursuant to Order 6 Rule 6 of the Court of Appeal Rules 2007.