Ogbeni Rauf Adesoji Aregbesola V. Senator Iyiola Omisore & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the Governorship Election Petition Tribunal sitting at Osogbo delivered on the 4th November, 2014.

The Appellant who is the 1st Respondent in the petition by motion on notice dated 16th October, 2014 challenged the competence of the Tribunal to hear the petition because the petitioner had not indicated in the petition that he had a right to present the petition as required by paragraph 4 (1) and (2) of the Electoral Act 2010 (as amended).

The Appellant also filed another motion on notice on 21st October, 2014 praying for an order of the Tribunal to strike out the petitioners’ Reply to the 1st Respondent’s Reply same having been filed out of time and dismissing the petition, the Petitioners having failed to apply for issuance of Pre-hearing Notice as prescribed by paragraph 18 (1) of the First Schedule to the Electoral Act 2010 (as amended).

On 30th October, 2014 in the course of pre-hearing session, learned counsel for the Petitioners referred the Tribunal to the provision of Paragraph 12 (5) of the First Schedule to the Electoral Act 2010 (as amended) and entreated the Tribunal to take the motions/objections of the 1st Respondent/Appellant along with the petition considering the fact that there was time limitation for the hearing of election petitions. The tribunal in a considered ruling ruled thus:

“It is not a contested fact that time is of the essence in the determination of this petition. The Tribunal has less than 4 months to determine this petition. There are over a thousand witnesses and numerous documents listed by the parties. The Respondents have not complained of any injustice or miscarriage that would be occasioned to them if these two motions are taken along with the petition. We have also not seen any prejudice or miscarriage of justice that will be caused to the Respondents. It is in consideration of the above, the interest of justice and the speedy trial of this petition that we hereby order that all the 4 motions now pending in this petition shall be taken along with the petition.”

Dissatisfied with the ruling the Appellant filed a Notice of Appeal against it on 7th November, 2014. The Notice of Appeal contains six grounds from which the Appellant presented the following issues for determination:

1. Whether the Tribunal was right in its decision to hear the Appellant’s preliminary objection of 16/10/2014 challenging the 1st and 2nd Respondents’ locus standi to present the Petition together with the Petition. (Ground 1 of the Notice of Appeal)
2. Whether the Tribunal was right in its decision to hear the preliminary objection of the Appellant of 22/10/2014 together with the Petition when the said preliminary objection constitutes a challenge to the jurisdiction of the Tribunal to further entertain the Petition for failure of the 1st and 2nd Respondents to file for issuance of pre-hearing sessions within time prescribed by law. (Grounds 2, 3 and 4 of the Notice of Appeal)
3. Whether the Appellant must show what injustice, prejudice or miscarriage of justice he shall suffer before the Tribunal is obliged to hear and determine the Motion on Notice filed on 21/10/2014. (Grounds 5 and 6 of the Notice of Appeal).

The 1st and 2nd Respondents formulated a lone issue for determination although they filed a notice of preliminary objection. The sole issue formulated by the 1st and 2nd Respondents is whether the Lower Tribunal was right when it held that Appellant’s applications dated 16th October, 2014 and 21st October, 2014 will be taken along with the petition.

Arguing the appeal, it was the submission of learned counsel for the Appellant that the Tribunal was wrong in holding that the preliminary objection of 16th October, 2014 challenging the locus standi of the 1st and 2nd Respondents to present the petition should be heard together with the petition because paragraph 12 (5) of the 1st schedule to the Electoral Act deals only with objections included in the replies to petitions and not when same is brought by way of motion on notice after close of pleadings as in this case. Secondly the appellant’s motion was brought under paragraph 47 (1) which is separate and distinct from paragraph 12 (5).

It was submitted that the objection raised in the Reply was just an indication of the intention of the Appellant to challenge the locus standi of the Petitioners and the objection was properly raised by motion on notice of 16/10/2014. That the Appellant had made a choice to come by way of motion on notice so that the issue of the locus standi of the Petitioners could be determined at the pre-hearing session.

It was submitted that the decision of the Tribunal to hear the motions together with the petition violated paragraph 53 (5) of the 1st schedule to the Electoral Act.

It was submitted that the provisions of paragraphs 47 (1) and 53 (5) are mandatory. It was submitted that the provisions of paragraph 47 (1) and 53 (5) of the first schedule to the Electoral Act require strict compliance and same cannot be waived by reliance on paragraph 12 (5) where objection touches the jurisdiction of the Tribunal.

The Court was urged to resolve issue 1 in favour of the Appellant and reverse the decision of the Tribunal to determine the motion of 16/10/2014 with the petition.

On issue 2, it was submitted that the approach of the Tribunal in relying on the cases of Continental Trust Bank & 5 ORS v. Balogun (2003) FWLR (Pt 162) 1908 and The Senate President FRN v. Nzeribe (2004) 9 NWLR (Pt 878) 251 does not follow in the nature of election petition which is sui generis and in which time is of the essence.