Oluwarotimi O. Akeredolu & Anor V. Rahman O. Mimiko & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment)

On 20th October, 2012, The Independent National Electoral Commission (INEC), the 3rd Respondent in this appeal conducted Governorship Election in Ondo State. The 1st Appellant, a candidate sponsored by the 2nd Appellant, Action Congress of Nigeria (ACN), contested the election with other candidates, including the 1st Respondent, Dr. Rahman O. Mimiko, who was sponsored by the 2nd Respondent, the Labour Party (LP). On 21st October, 2012 INEC declared and returned the 1st respondent as the winner of the election.

Dissatisfied with the declaration and/or return of the 1s Respondent by the INEC the Appellants filed their petition challenging the return of the 1st Respondent on 9th November, 2012 at the Governorship Election Tribunal sitting at Akure, Ondo State (hereinafter called “The Tribunal). The Petition is at pages 1 – 150 of the Record.

The Respondents filed their respective replies to the petition. The Reply of the 3rd Respondent at pages 276-342 of the Record, was filed on 30th November, 2012. The 2nd Respondent filed its Reply on 3rd December, 2012. It is found at pages 343 – 387 of the Record. The reply of the 1st Respondent is at pages 389 -589 of record. It was filed on 10th December, 2012.

At the close of the pleadings the Petition went into trial before the Tribunal. The Appellants called a total of 41 witnesses, including two expert witnesses. The 1st Respondent called 14 witnesses. The 2nd and 3rd Respondents called no witnesses. The counsel for the respective parties, at the close of the evidence, filed and exchanged their respective written Addresses, which they later adopted as their arguments in the Petition. In its considered judgment delivered on 3rd May, 2013, the Tribunal dismissed the Petition in its entirety; hence this appeal.

The Appellants filed a total of 38 Grounds of Appeal in the Notice of Appeal copied at pages 1775 – 1796 of Vol. 3 of the Records.

Briefs were filed and exchanged by the parties through their Counsel. The Appellants’ main brief was filed on 4th June, 2013. In addition the Appellants filed Reply Briefs in response to the briefs filed, each, by the 1st, 2nd and 3rd Respondents. The three Reply Briefs were filed on 12th June, 2013. These briefs and the main Appellants Brief were all adopted as the arguments/submissions of the Appellants in the appeal on 25th June, 2013 at the hearing of the appeal.

The 1st Respondent’s Brief, filed on 7th June, 2013, was adopted as the argument of the 1st Respondent in the appeal. Before then, the 1st Respondent had, on 7th June, 2013, filed Notice of Preliminary Objection wherein a number of the Appellants’ grounds of appeal were attacked. The Preliminary Objection was argued in the 1st Respondents Brief. Chief Wole Olanipekun, SAN moving the preliminary objection had urged us to strike out the defective grounds of appeal, the particulars in some of the grounds of appeal and the issues formulated for determination of the appeal wherein the defective grounds were included.

Chief Akin Olujinmi, SAN of Counsel to the Appellants, relying on the S.P.D.C. V. AMADI (2011) 6 SCM 183 at page 196, in response, submitted that preliminary objections are filed against the hearing of the appeal, with the view and aim of terminating same; and that when there are other grounds which can sustain the appeal the proper procedure is to come by way of motion on notice praying for an order striking out the defective grounds of appeal.

Notwithstanding the vehement opposition of Chief Olanipekun, SAN, on the ground that Order 10 Rule 1 of the Court of Appeal Rules, 2011 does only provide for the respondent to file preliminary objection, and not the other way round, I am in complete agreement with Chief Olujinmi, SAN on this. If the Notice of Preliminary Objection is a process in the appeal and it is for any reason, on points of law, not one that can be countenanced; then it could be objected to. I need not belabor the issue. The Supreme Court in S.P.D.C V. AMADI (Supra) at page 196 has settled the issue when per Rhodes-Vivour, it states the law thus:

Preliminary objections are against the hearing of an appeal and so once it succeeds the appeal no longer exists. All too often we see preliminary objections filed against one or more grounds of appeal. Once there are other grounds that can sustain the appeal, a preliminary objection should not be filed. Instead a Notice of Motion seeking to strike out the defective grounds of appeal should be filed.

This statement of law, in view of Section 287 (1) of the 1999 Constitution, as amended, binds this court and the parties. The matter therefore, rests there. The Notice of Preliminary Objection filed by the 1st Respondent on 7th June, 2013 and argued in the 1st Respondents Brief of Argument filed also on 7th June, 2013 will not be countenanced since it purports not to terminate the entire appeal, but only some grounds of appeal in the Notice of Appeal.

The 2nd Respondents Brief, filed on 7th June, 2013, was adopted at the hearing of this appeal on 25th June, 2013 by Yusuf O. Ali, SAN as the argument of the 2nd Respondent. Dr. Onyechi Ikpeazu, SAN of Counsel to 3rd Respondent formally adopted the Brief of the 3rd Respondent, filed on 7th June, 2013 and prayed, like the counsel respectively for the 1st and 2nd Respondents, that the appeal be dismissed.

The Appellants’ Brief, filed on 4h June, 2013 containing arguments on which Chief Olujinmi SAN urged us to allow the appeal, has a total of 13 issues for determination as follows: –