Peoples Democratic Party (PDP) & Anor V. Independent National Electoral Commission (INEC) & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the National Assembly/Legislature Houses Election Petition Tribunal sitting in Abeokuta, Ogun State, delivered on the 18th of August 2011 in petition No.EPT/OG/LH/10.2011 wherein the Tribunal dismissed the petition for lack of diligent prosecution.

The facts of the case are that 1st Respondent conducted into the State House of Assembly on the 26th of April 2011. The 2nd Appellant and the 2nd Respondent contested the House of Assembly seat for the Ijebu East State Constituency, Ogun State. 1st Appellant was the flag bearer of the 2nd Appellant while the 2nd Respondent was sponsored by the 3rd Respondent. At the conclusion of the election exercise, the 1st Respondent announced the results and declared the 2nd respondent as the winner of the election.

The Appellants as petitioners before the lower Tribunal brought a petition dated and filed on the 18th of May 2011 challenging the result declared by the 1st Respondent in respect of the election to the Ogun State House of Assembly for the Ijebu East Constituency and the election of the 2nd Respondent. The Respondents duly field their replies to the petition and joined issues with the Appellants. Parties filed and exchanged pre-hearing documents.

On the 18th of June 2011 before the matter pre-hearing session, the lower tribunal granted the parties order of inspection of the materials used for the election and to obtain certified true copies of same. By the order of inspection, the inspection was to take place from 24th June 2011 to 1st July 2011. The matter proceeded to pre-hearing session which ended on the 5th of August 2011 and in which date, the matter was adjourned till 18th of August 2011 for trial.

On the day of trial, which was the 18th of August 2011, the lower tribunal directed the Appellants to commence the trial of the petition. Learned Counsel for the Appellants said he was not ready to open the Appellants case because the various documents the Appellants will be relying upon have not been released by the 1st Respondent. Learned Counsel for the Appellants filed notice of consequence of disobedience of court order (Form 48) on the 1st Respondent before the lower court in of the 18th of August 2011. Learned Counsel for the respectively urged the Tribunal to dismiss the lack of diligent prosecution. The petition was accordingly dismissed by the lower Tribunal under Section 46 subsection 3 of the First Schedule to the Electoral Act 2010 as amended.

Dissatisfied with the said ruling, Appellants appealed to this court vide the-notice of appeal filed on the 25th of August 2011 complaining on one ground of error in law and seeking the relisting of the petition for hearing on the merit.

Appellants filed their brief of argument on the 16th of September 2011 while the 2nd and 3rd Respondents filed their brief of the 27th of September, 2011. 1st Respondent did not file any brief and was not present at the hearing. there is however on our record evidence of the service of the hearing of the appeal on that day on the 1st Respondent. appellants distilled a sole issue for determination from the one ground of appeal. The sole issue states:

Whether the lower Tribunal was right when it dismissed the Petitioners petition pursuant to paragraph 46(3) of the 1st Schedule to the Electoral Act 2010.

The 2nd and 3rd Respondents distilled a sole issue for determination thus:

Whether in the circumstances, the Honourable Tribunal was right and justified in dismissing the Appellants Petition.

However 1st Respondent did not file any brief and as such did not distil any issue for determination. The issues formulated by the Appellants and the 2nd and 3rd Respondents are the same although couched differently. In the circumstance, the appeal will be determined on the issue distilled by the Appellants.

Learned counsel for the 2nd and 3rd Respondents filed a preliminary objection in an application dated and filed on the 27th of September 2011 and the preliminary objection was argued in their brief. The preliminary objection will be taken first before delving into the merits of the case.

For the 2nd and 3rd Respondents, Learned counsel submitted on the preliminary objection that the notice of appeal filed in this case is incurably defective and this renders the appeal itself incompetent and consequently robs this court of its jurisdiction to entertain and determine same. He argued further that the notice of appeal is not directed at any of the two separate rulings of the lower tribunal delivered on the 18th of August 2011. On the 18th of August 2011, the lower Tribunal delivered two separate rulings on different applications. The grounds of the applications as well as basis of the rulings were different. The first application was an application for adjournment made by the Appellants Counsel Mr Amao. The Respondents opposed the application on the ground that the basis for same was false as notice of consequences of disobedience to court order filed in the morning of the day of trial did not constitute application for committal proceedings.