Oluwarotimi O. Akeredolu & Anor V. Rahman O. Mimiko & Ors. (2013)
LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment)
On the 20th day of October, 2012, election was conducted by the 3rd Respondent herein, into the office of Governor of Ondo State. At the election, a number of political parties and their candidates participated. The 1st Appellant Oluwarotimi O. Akeredolu, SAN was sponsored by the 2nd Appellant – Action Congress of Nigeria, (ACN). while the 1st Respondent Rahman O. Mimiko was the candidate of 2nd Respondent – Labour Party, (LP).
Upon the conclusion of the election, the 3rd Respondent- Independent National Electoral Commission (INEC) declared the 1st Respondent – Rahman O. Mimiko as the winner of the said election into the office of Governor of Ondo State of Nigeria. His return was predicated upon the proclamation that he scored the majority of lawful votes cast at the election and fulfilled other constitutional requirements.
Appellants alongside other contestants were dissatisfied with this development. On 9th November, 2012, the Appellants herein challenged the return of the 1st Respondent at the tribunal, vide an Election Petition, registered as Petition No.EPT/OD/GOV/02/2012, wherein they contended in essence that the election was invalid by reason of corrupt practices and /or non-compliance with the provisions of the Electoral Act, 2010 (as amended). The Respondents maintained a different standpoint and insisted that the election was conducted in substantial compliance with the relevant and applicable laws – constitutional and statutory.
Pleadings were duly filed and exchanged. The Respondents in their respective replies gave Notices of Preliminary Objection and also filed formal notices thereon, wherein they challenged the competence of the petition generally and specific paragraphs therein, all on diverse grounds. The Appellants herein, also filed motions which inter alia related to the competence of 2nd Respondent’s reply to the petition. On the whole, 32 applications were filed before the tribunal by five different sets of Respondents, both contentious and non-contentious.
It is significant to note that learned Counsel for all the parties, after due consultations agreed inter alia to the consolidation of the petitions, inclusive of all the motions and with the tribunal delivering one ruling which will incorporate the whole lot, particularly the contentious ones. The tribunal in its ruling which was delivered on 22nd January 2013 agreed with the position as reported and taken by the learned Counsel for the parties, expressed its gratitude to them and ordered accordingly. Eventually, on 4th February, 2013 the tribunal delivered its ruling in respect of the various motions filed by the parties before it.
In the case of the Appellants herein, the tribunal somewhat substantially upheld parts of the preliminary objections raised by the Respondents and dismissed the application by the Appellants which sought the invocation and application of paragraph 12 [5] of the 1st Schedule to the Electoral Act, 2010 (as amended). It also dismissed the Appellant’s preliminary objection to the competence of 2nd Respondent’s reply and 2nd Respondent’s preliminary objection. The said decision and the dissatisfaction of the Appellants therewith, gave rise to the instant appeal which was filed on 13th February 2013. It contained ten Grounds of Appeal, which included inter alia, that the tribunal delivered a single ruling in respect of all the applications.
In accordance with the rules of this Court, parties duly filed their respective briefs of argument. Appellants’ brief was filed on 4th March, 2013. It was settled by Chief Akin Olujinmi, CON, SAN and his team of lawyers. Appellants also filed their replies to 1st, 2nd and 3rd Respondents’ briefs on 15th March, 2013. The issues for determination as identified in the said Appellants’ brief are as follows:
“1. Whether the trial Tribunal correctly applied the principles of consolidation in the way and manner it handled the consolidated petitions and the consolidated applications in respect of which the tribunal delivered one single ruling. (GROUND 1 OF APPEAL).
- Whether in view of settled principles of law, the construction placed on the combined provisions of Paragraph 12 (5), 18(7)(d), and 53(5) of the 1st Schedule to the Electoral Act 2010 (as amended) and the decision of the Supreme Court in PDP v. INEC (2012) 7 NWLR (Pt.1300) 538, by the trial Tribunal can be justified. (GROUNDS 3, 4, 5 OF APPEAL),
- Whether on a proper construction of Paragraphs 4(1) (d) and 17 of the 1st Schedule to the Electoral Act 2010 (as amended), the relevant provisions of the Federal High Court (Civil Procedure) Rules 2009, the Constitution of the Federal Republic of Nigeria 1999 (as altered) and the Electoral Act 2010 (as amended), the striking out of specified paragraphs of the Appellants’ Petition by the Tribunal on the grounds assigned by it was right in law. (GROUNDS 6, 7, 8, 9 OF APPEAL)
- Whether the trial Tribunal was justified in law in striking out Paragraphs 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125 and 126 of Appellants’ petition in respect of Okitipupa and Ilaje Local Government Areas of Ondo State, (GROUND 10 OF APPEAL).
- Whether the 2nd Respondent’s processes signed and filed by Prof. Wahab Egbewole are not incompetent in view of Paragraphs 1 and 2(b) of the 5th Schedule to the Constitution of the Federal Republic of Nigeria 1999 (as amended). (GROUND 2 OF APPEAL).”
The 1st Respondent’s brief of argument which was settled by Chief Wole Olanipekun, OFR, SAN, FCIArb, was filed on 11th March, 2013. It embodied a Notice of Preliminary Objection with arguments thereon having been incorporated therein. Additionally, a formal notice was filed on 15th March, 2013 in respect thereto and which said motion, the learned Appellants’ Counsel made the point that it was served on him on 18th March, 2013. The issues identified by the 1st Respondent for determination in this appeal are reproduced below:
“1. Having regard to the agreement of Counsel, the nature of election petitions and the state of the law, whether the tribunal was not right in the way and manner it handled the consolidated applications- Ground 1.
- Whether having regard to the nature of the applications filed and the state of the law on the applications, the tribunal was not justified in taking the applications at the time it did- Grounds 3, 4, 5.
- Whether the tribunal was not right in striking out Paragraphs 13, 14, 15, 17, 18, 19, 20, 22, 23, 24, 26, 27, 28, 29, 38, 39, 40, 44, 45, 46, 48, 49, 51, 55, 71, 76, 77, 78, 79, 79, 80, 81, 85, 102, 103, 110, 111, 112, 113, 114, 120, 123, 124, 125, 126, 130, 146, 149, and 181; Paragraphs 30, 31, 32, 33, 34, 35 and 127; Paragraphs 86, 91, 121, 132, 143, 144 and 145 of the Appellant’s petition- Grounds 6,7, 8, 9.
- Whether the 1st Respondent not being the winner of the election in Okitipupa and Ilaje Local Government Areas of Ondo State and the winner of the election in the said Local Government Areas not being a party to the Appellants’ petition, the Tribunal was not right in striking out Paragraphs 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, and 126 of the Appellants’ petition, touching on the two Local Governments Areas – Ground 10”
The 2nd Respondent’s brief of argument was filed on 11th March, 2013. It was settled /prepared by Yusuf O. Ali, Esq., SAN and his team of lawyers. As listed therein, the issues for determination are as follows
“1. Whether the Honorable trial Tribunal was not right in its decision that Professor Wahab Egbewole competently signed processes filed before it and in dismissing the Appellants’ objection on that ground especially since the objection was taken before the wrong forum. (Ground 2)
- Whether the Honorable trial Tribunal was in error in the way and manner it wrote and delivered its ruling on the consolidated applications and whether any miscarriage of the justice had been occasioned on any of the parties thereby. (Ground 1)
- Whether the trial Tribunal was not right in taking and determining the objection filed by the Respondent that challenged its jurisdiction and in dismissing the objection of the Appellant prayed for the deferment of the said objection until the end of trial having regard to the state of the law in this matter. (Grounds 3, 4 and 5)
- Whether the trial Tribunal was not right in holding that several paragraphs of the petition relate to Pre-Election matters and in striking out such paragraphs alongside others which are vague, general, evasive and nebulous as well as paragraphs relating to criminal allegations against named persons who were not joined as parties to the proceedings (Grounds 6, 7, 8 and 9),
- Whether the Honorable trial Tribunal was not right in striking out paragraphs of the petition dealing with Ilaje and Okitipupa Local Government Areas when the 2nd Respondent did not win majority of the votes cast in the said Local Government Areas and when the Peoples Democratic Party (PDP) that won in the said Local Government Areas and would be affected by any order in respect thereof was not joined as a party to the Petition. (Ground 10)”
The 3rd Respondent’s brief which also embodied a Notice of Preliminary Objection and incorporated arguments thereon in the said brief, was also filed on 11th March, 2013. The said brief was prepared by a team of lawyers, led by Chief Adegboyega Awomolo, SAN, FCIArb, FNIALS. The 3rd Respondent also filed a formal notice in respect thereof. The issues formulated by the 3rd Respondent for determination of this appeal are as follows:
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