Labour Party V. Independent National Electoral Commission (INEC) & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the ruling of the National Assembly and State Assembly Election Petition Tribunal sitting at Lagos (Coram Honourable Justice Maurice Eneji (Chairman), Honourable Justice Ahman Abbas (member), Honourable Justice Musa Bazzar (member) delivered on 5th September, 2011 dismissing the appellants petition for the reason that the petitioner/appellant used a letter to apply for the issuance of pre-hearing notice instead of a motion on notice.

This case was set for hearing as pre-hearing session had been concluded, when on 8th July 2011 the 2nd & 3rd respondents filed a motion to set aside the pre-hearing notice issued in this petition for being incompetent and further to dismiss this petition. The letter dated 18th May 2011 formed the basis for the application for the issuance of the pre-hearing notice by the appellant. See page 247 of them.

On 5th September 2011, the Trial Tribunal dismissed this petition inlimine on the ground that the petitioner/appellant used a letter to apply for pre-hearing notice. It is against the said ruling that the appellant filed its notice of appeal on 20th September 2011. The respondent also filed a Respondent’s notice dated 14th October, 2011 urging this honourable court to affirm the judgment of the lower tribunal on the grounds that the petition before it is academic and abusive. Briefs were filed in this Court and issues were joined by the parties.

The Appellant’s brief was filed on 13th October, 2011 and deemed filed on 17th October 2011. The Appellant also filed a reply brief on 25th October 2011 in response to the 2nd & 3rd Respondent’s Notice of preliminary objection. The 1st Respondent’s brief dated and filed on 18th October 2011 was deemed filed on 19th October 2011. The 2nd & 3rd Respondents’ brief was filed on 24th October 2011. The 2nd & 3rd Respondents’ filed a Notice of preliminary objection on 24th October 2011. The 2nd & 3rd Respondents also filed a Respondent’s Notice on 19th October 2011. Also the 2nd & 3rd Respondents filed Reply brief in respect of the Respondent’s Notice on 27th October 2011.

The 2nd and 3rd Respondents filed a notice of preliminary objection, the grounds of which are set out below:

“i. The appellant in the formulation of its issues failed to link same with any ground of appeal.

ii. The said issue does not arise from the grounds of appeal upon which the brief of argument is predicated. The issue relates to the secretary of the lower tribunal who is not mentioned at all in the grounds of appeal

iii. The said issue is also contrary to the express provisions of paragraph 18 (1) & (2) of the First Schedule to the Electoral Act 2010 (as amended).

iv. Further to (1) – (iii) supra, the appellant’s issue for determination is fundamentally and incurably defective and liable to be struck out.

v. By necessary implication and operation of law, when defective issue(s) for determination is/are struck out, the arguments arising from such issue(s) will also be struck out.

vi. Arising from (i) – (iv) supra, the appellant’s brief and indeed its entire appeal are defective and incompetent.”

Learned Senior Counsel for 2nd and 3rd Respondents submitted that the issue for determination is not linked or tied to either of the two grounds of appeal as the Appellants counsel made no effort to indicate in the brief in respect of the said issue which of the grounds of appeal it is related to. This failure, argued Learned Senior Counsel has left a lot to conjecture and speculation and this court has no jurisdiction to give an advisory opinion based on conjesture or speculation as the court cannot help a party to conduct its case or descend into the arena. He cited ATTORNEY GENERAL ANAMBRA V. ATTORNEY GENERAL OF FEDERATION (2005) 5 SC (Pt 1) 73; PUNCH V. EYITEME (2001) 17 NWLR pt 741 pg 228 at 225; KALU V. UZOR (2006) 8 NWLR Pt 981 pg.

Learned Senior Counsel also argued that the pith of the sole issue for determination is as to the determination of the mode of an application made to the secretary of the Tribunal. Nowhere in the entire length and breath of the two grounds of appeal and the particulars thereof is there any mention of an application to the secretary of the lower tribunal. Thus counsel argued, there is therefore an obvious disconnect between the issue for determination and the grounds of appeal since the grounds do not challenge any decision with respect to the applications made to the secretary of the Tribunal. He cited J. C. LTD V. EZENWA (1996) 4 NWLR Pt 443 Pg 391.