Okino Aloysius Adeiza & Ors Vs Independent National Electoral Commission (Inec) & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, JCA (Delivering the leading judgment)

This appeal is against the decision of the National and State Houses of Assembly Election Petition Tribunal, Kogi State (hereinafter the tribunal) delivered on 1st June, 2023.

The appellants were the petitioners before the tribunal and they brought an election petition against the return of the 3rd respondent as duly elected in the House of Representatives election conducted on 25th February, 2023, in respect of the Ajaokuta Federal Constituency.

After the conduct of the pre-hearing by the tribunal, the appellants were given five days to present their case.

On the first of the five days, the learned counsel for the appellants applied for an adjournment which was granted, and the tribunal stated the appellants had four days remaining to present their case and that if on the next date they still fail to field their witnesses that the petition will be dismissed.

On the adjourned date, the appellants, their counsel, and their witnesses were absent, whereupon the tribunal dismissed the petition for having been abandoned.

The appellants were dissatisfied with the decision of the tribunal, and they appealed against the same. The ruling of the tribunal dismissing the appellants petition is at page 509 of the records of appeal, while the notice of appeal which was filed on 20th June, 2023 is at pages 519-525 of the records of appeal.

The records of appeal and supplementary (additional) records of appeal having been compiled and transmitted, the parties filed and exchanged briefs of argument. The briefs on which the appeal was argued are:

1. Appellants brief of argument filed on 3rd July, 2023
2. 1st respondents brief of argument filed on 7th July, 2023.
3. 2nd respondents brief of argument filed on 7th July, 2023.
4. 3rd respondents brief of argument filed on 7th July, 2023.
5. Appellants reply brief of argument to the 3rd respondents brief of argument filed on 12th July, 2023.

At the hearing of the appeal on 17th July, 2023, the learned counsel for the appellants and the 2nd & 3rd respondents adopted and relied on their briefs of argument and urged the court to uphold their submissions in the determination of the appeal. The 1st respondent, though served with a hearing notice, was not represented in court; in consequence, the court treated the appeal as argued by the 1st respondent pursuant to the provisions of order 19 rule 9 (4) of the Court of Appeal Rules, 2021.

The appellants distilled three issues for determination in their brief of argument, namely:

1. Whether the lower tribunal can raise an issue suo-motu and determine same suo-motu against a party before the court without hearing address(es) from parties present before the court? (Distilled from ground 1 of notice of appeal)
2. Whether the lower tribunal had denied the appellants their right to a fair hearing of their petition when it dismissed same on the 1st of June, 2023 when the same tribunal had allotted to the appellant five days (adjournment) to prove their case? (Distilled from ground 2 of the notice of appeal).
3. Whether the lower tribunal denied the appellants the statutory fair hearing when it failed to issue and serve the appellants or their counsels the statutory Form TF 005 in compliance with the provisions of the extant Electoral Act, 2022. (Distilled from ground 3 of the notice of appeal).

The 1st respondent on its part formulated a sole issue for determination, as follows:

Whether the trial court was right to have held that the appellants were not diligent in the prosecution of their petition for failure to appear before the tribunal on three consecutive adjourned dates.

On its part, the 2nd respondent nominated two issues for determination, videlicet:

1. Whether the appellant having being [sic] adequately represented at the pre-hearing session on the 15th and 31st day of May, 2023 Are Entitled To Formal Hearing Notice (Form TF005) for hearing of the petition (grounds three, four of the notice and grounds of appeal).
2. Whether the dismissal of the appellants petition consequent upon the order of the honourable tribunal made on the 31st day of May, 2023 can be said to have occasioned miscarriage of justice.” (Grounds one, two and five of the notice and grounds of appeal)

For the 3rd respondent, four issues were identified for determination, scilicet: