Olayinka Braimoh & Ors v. Ahmed Usman Ododo & Ors (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

ABUBAKAR SADIQ UMAR, JSC (Delivering the leading judgment)

This is an appeal against the judgment of the Court of Appeal, Abuja delivered on the 11th day of July, 2024 whereby the lower court affirmed the decision of the Kogi State Governorship Election Tribunal dismissing the petition of the petitioners.

Dissatisfied with the said judgment of the lower court, the appellants appealed to this court on grounds as contained in the notice of appeal dated and filed on 26th July, 2024 with the view to upturn the judgment of the lower court.

The facts giving rise to this appeal are that 3rd respondent conducted election on 11th November, 2023 into the office of Governor, Kogi State. The 1st appellant contested the said election on the platform of the 2nd appellant.

The 1st respondent also contested the election on the platform of the 2nd respondent and was returned by the 3rd respondent as elected with 446,237 votes as opposed to the appellants 1,240 votes. Displeased with the return of the 1st respondent.

The appellants filed their petition predicated on a lone ground of invalidity of the election by reason of non-compliance with the provisions of the Electoral Act. Pleadings were duly filed and exchanged on which parties joined issues. The respondents incorporated preliminary objections in their respective replies.

In the judgment delivered on 27th May, 2024, the tribunal overruled the objections of the respondents and proceeded to determine the petition on the merit. The tribunal ultimately dismissed the petition for lacking in merits.

Aggrieved by the judgment of the tribunal, the appellants lodged an appeal to the lower court. briefs of arguments were duly filed and exchanged. The appellants also filed a motion on notice by which they prayed the lower court to strike out the respondents briefs for failure to comply with Practice Direction on Election Matters. The appeal was heard in its judgment delivered on 11th July, 2024, the lower court dismissed the appellants motion to strike out the respondents brief. Thereafter considering all issues for determination of the appeal resolved same against the appellants, affirmed the decision of the tribunal and thereupon dismissed the appeal of the appellants. The appellants further aggrieved have filed this appeal.

Issues for determination

In the appellants brief dated the 2nd day of August, 2024 and settled by Kolawole Olowookere learned counsel distilled the following three issues for determination in this appeal:

1. Whether in view of the Certified True Copies of the electoral materials tendered in evidence by the appellants, the learned Justices of the Court of Appeal rightly interpreted/applied the provision of section 137 of the Electoral Act, 2022 to the case of the appellants with regards to the burden of proving over voting alleged in the petition?
2. Whether the Court of Appeal was right in affirming that the trial tribunal was right in law when it failed to countenance the evidence and the documents tendered through PW9 and PW10 who were subpoenaed by the appellants via subpoena duce tecum and subpoena ad testificandum on the ground that their witness statement on oath were not front loaded?
3. Whether in the determination of the appellants appeal, the Court of Appeal was right to have agreed with the decision of the trial tribunal that it is only Polling Unit Agents that can testify about the content of the BVAS report and facts concerning the BVAS machine.
4. Whether the learned Justices of the Court of Appeal were right in law in their interpretation of paragraph 11(b) of the Judicial Proceedings Practice Direction, 2022 with regards to the briefs of argument filed by the respondents which did not comply with the mandatory requirement of the Judicial Proceedings Practice Direction.

The teams of respondents counsel were led by J.B. Daudu SAN, Emmanuel C. Ukala SAN and Kanu G. Agabi SAN for the 1st, 2nd and 3rd respondents respectively, in their briefs, similar issues to those of the appellants were distilled for determination of the appeal. In addition, learned senior counsel to the 3rd respondent Kanu G. Agabi, SAN raised a preliminary objection to the hearing of the appeal.

The law is trite that where in a suit or an appeal, a preliminary objection is raised, the court is bound to hear and determine the preliminary objection before the main suit or appeal is heard. This position is well entrenched in our practice and procedure and also firmly established by numerous decisions of the courts. While the courts of first instance and intermediate appellate courts such as the High Courts and Court of Appeal are enjoined to consider the issues in the substantive case or appeal irrespective of whether the preliminary objection succeeds or fails, the Supreme Court as the final court will only proceed to determine the substantive suit or appeal if the objection fails. Therefore, where a preliminary objection succeeds before the Supreme Court, then the business of the court is over as there will be no need to proceed to determine the suit or appeal on the merit. See Allanah v. Kpolokwu (2017) 40 WRN 1; (2016) LPELR-40724 (SC), Mainasara v. FBN Plc. (2022) 20 WRN 1; (2022) 6 NWLR (Pt. 1827) 465, Polaris Bank Ltd v. Forte Oil Plc (2023) 5 NWLR (Pt. 1876) 179, Toyin v. PDP (2020) 3 WRN 49; (2019) 9 NWLR (Pt. 1676) 50, Utoo v. APC (2018) 12 NWLR (Pt. 1634) 507.

On the heels of the foregoing, I will consider the preliminary objection raised by the 3rd respondent before I go into the argument of counsel on the issues nominated in the substantive appeal if need be.

Arguments on the preliminary objection