Ogunmodede Olayemi V. Adams A. Fatai & Ors. (2008)

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ALI ABUBAKAR BABANDI GUMEL, J.C.A,

This is an appeal against the decision of the Governorship/Legislative Houses Election Tribunal established Ondo State in Petition No.EPT/OND/SH/16/2007. In a ruling dated 24th September, 2007, the lower Tribunal dismissed the petition of the petitioner/Appellant for failure to comply with the provisions of the Election Tribunals and Court Practice Directions 2007, (Practice Directions 2007) on application for instance of pre-hearing notice. The Petitioner as Appellant herein was dissatisfied with the decision leading to the dismissal of the petition and appealed the decision. The appeal is predicated on a notice of appeal dated 15th day of October, 2007 containing 5 grounds of appeal with very copious particulars.

The Appellant, as the Petitioner in petition No.EPT/OND/SH/16/2007, challenged the return of the 1st Respondent as the duly elected candidate for the Akoko North- West Constituency II in the Ondo State House of Assembly sequel tot he election held on 14th April, 2007. The challenge against the declaration and return of the 1st Respondent was on the grounds of electoral malpractices and/or non-conduct of elections at all.

The 1st Respondent entered conditional appearance in a memorandum dated 30th May, 2007 but filed on 31st May 2007. Further to this, the 1st Respondent filed a paragraph reply to the petition. The reply was filed on 14th June, 2007. By a memorandum dated and filed on 24th May, 2007, the 5th and 6th Respondent entered their appearance and filed a 22 paragraph joint reply dated 10th June, 2007 but filed on 16th June, 2007. The 2nd to 4th and 7th Respondents did not enter appearance and did not file replies to the petition.

The Petitioner/Appellant filed his application for issuance of pre-hearing notice on 7th August, 2007. Before this application, however, the Secretary to the lower Tribunal had issued and served pre-hearing notices on all the parties on 6th August, 2007. On 30th July, 2007, the 1st Respondent/Respondent applied for an order of the lower Tribunal for leave to adduce further evidence in the form of sworn witnesses statements and a deeming order that the sworn witnesses statements attached to the application were properly file and served. Earlier in a ruling dated 18th July, 2007, the lower Tribunal had dismissed the application of the 2nd – 4th Respondents to file their replies out of time.

Sequel to the pre-hearing notice of 6th August, 2007, the Petitioner filed a response on 13th August, 2007, while the 2nd- 4th Respondents filed a reply on 9th August, 2007, and the 16th Respondent filed a reply on 18th August, 2007. This matter remained so until 10th September, 2007, when learned counsel to the Petitioner/Appellant Dr. O.F. Ayeni sought to set the records straight when he drew the attention of the lower Tribunal to the fact that the Appellant did not apply for issuance of pre-hearing notice until 7/8/07 and after it was gratuitously issued and served by the Secretary of the Tribunal on 6/8/07. After setting the facts straight and bare learned counsel Dr. Ayeni made an oral application for extension of time to file the application for issuance of pre-hearing notice and for a deeming order that the application filed on 7/8/07 was properly filed and served as well as an order for leave to rely on paragraph 49(1) and (2) in Schedule one to the Electoral Act 2006 to invite the lower Tribunal to discountenance any argument tending to nullify either the petition or the proceedings therein. This latter prayer of learned counsel was predicated on the fact that all parties had taken some steps pursuant to the pre-hearing notice issued by the Secretary of the Tribunal on 6th August, 2007.

Respective learned counsel to the Respondents argued against these prayers and the oral application for them. In the course of its ruling on 24th September, the lower Tribunal considered this oral application alongside the arguments and submissions of learned counsel to the respective Respondents and decided that the issuance of pre-hearing notice before an application therefore, rendered it void because a condition precedent to its issuance had not been fulfilled. This appeal is against that ruling.

To argue this appeal, learned counsel Dr. Ayeni on behalf of the Appellant, filed a brief of argument pursuant to Order 17 Rules 1 and 2 of the Court of Appeal Rules 2007. It is dated 11th December, 2007, but was deemed properly, filed and served on 9th January, 2008. The 1st Respondent filed a notice of preliminary objection dated 9th January, 2008, on 11th January, 2008 challenging the appropriateness and competence of some of the grounds of appeal and the issue(s) formulated therefrom as well as a brief of argument. This brief of argument incorporated arguments on the notice of objection. A brief of argument was also filed on behalf of the 2nd – 4th Respondents. The 5th to 7th Respondents did not file any brief. In a bid to respond to the notice of preliminary objection as argued in the brief of the 1st Respondent, learned counsel to the Appellant filed a reply brief dated 4th February, 2008 pursuant to Order 17 Rule 5 of the Court of Appeal Rules 2007.

The preliminary objection of the 1st Respondent was brought on the following grounds:-

1. Ground 3 is deemed abandoned as issue No. 1 formulated thereunder contain arguments that do not relate to or covered by the ground;
2. Ground 3 relates to the application for extension of time whilst issue No.1 treats the issue of the abandonment of the petition and the attendant dismissal by the lower Tribunal;
3. Ground 4 attacks the exercise of discretion by the lower Tribunal;
4. Ground 4 does not properly challenge the exercise of discretion;
5. Grounds 4 and 5 are the same and constitute a duplication;
6. Particulars of ground 5 do not have relationship with the ground;
7. Ground 5 will be deemed not to have been raised in the Notice of appeal as the particulars raised do not relate to the ground;
8. Ground 5 talks about the issuance of form TF007 by the Secretary of the Tribunal whilst for particulars talk about late application of the appellant for issuance of form TF007;
9. Form TF007 issued by the Secretary of the lower Tribunal without an application by the Appellant is different from the application of the Appellant for the issuance of same dated 7/8107.
10. Particulars (i) and (iv) of ground 1 are not only argumentative? (sic) and
11. Issue 1 is incompetent for no (sic) hanging on a ground of appeal.

I wish to observe that some of these grounds are so inelegantly drafted and also the choice of phrases for them by learned counsel leaves so much to be desired.

In deciding the oral application of learned counsel Dr. Ayeni on 10th of September, 2007, the lower Tribunal in its ruling leading to this appeal held as follows:-

“We agree with the submissions of the 1st Respondent’s counsel that the issuance of form TF007 before the application for notice of pre-hearing session was filed renders the form TF007 void. This is so because the condition precedent to the issuance of the said form which is the filing of the application had not been fulfilled.”

I have considered this portion of the ruling of the lower Tribunal along side the arguments and submissions of learned counsel Dr. Olatoke, for the 1st Respondent, on the preliminary objection and also the reply of learned counsel Dr. Ayeni for the Appellant. I have also closely considered all the grounds of appeal together with the issues distilled therefrom. I wish to observe that Nigerian case law has remained consistent that the whole purpose of grounds of appeal is to give notice to the other side of the appeal what they have to meet in the appellate court and these must be stated with specificity and precision. The appellate courts do not allow vague and general grounds which disclose no reasonable grounds of appeal, excepting the general ground that the judgment is against the weight of evidence. See N.I. P. C. VS. THOMPSON ORGANISATION (1969) 1 ALL NLR 138 and IDIKA & ORS. VS. ERISI & ORS. (1988) 2 NWLR (PT.78) 563.

Further to this, grounds of appeal must relate to and should also constitute a challenge to the ratio of the decision of the lower court as well as constitute in aggregate the reasons why the decision being appealed is considered wrong by the appellant and fulcrum upon which an appellate court is called upon or urged to set it aside. See SARAKI VS. KOTOYE (1992) 9 NWLR (PT.264) 156. Also, grounds of appeal allege the complaints against the judgment appealed against. The issues for determination accentuated the issue in the grounds of appeal relevant to the determination of the appeal in the light of the grounds of error alleged. There is therefore a clear and direct relationship between the grounds of appeal and the issues for determination in an appeal. See OLOWOSAGO VS. ADEBANJO (1988) 4 NWLR (PT. 88) 275 as per Karibi-Whyte, JSC at 283.